Business Park Maintenance Services Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 6260/DEL/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4004 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 26-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AJAY BHAVANI
• Keywords: Non compliance
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: D NEW DELHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDEN T & SHRI K.N. CHARY, JUDICIAL MEMBER ITA NO.-6260/DEL/2015 ( ASSESSMENT YEAR: 2012-13) BUSINESS PARK MAINTENANCE SERVICES PVT. LTD. M-11, MIDDLE CIRCLE, CONNAUGHT CIRCUS, NEW DELHI. AACCB9525C VS DCIT CIRCLE 3(1) NEW DELHI. ASSESSEE BY SH. AJAY BHAVANI, FCA REVENUE BY SH. ARUN KUMAR YADAV, SR. DR ORDER PER SHRI K.N. CHARY, JUDICIAL MEMBER THIS IS AN APPEAL BY THE ASSESSEE CHALLENGING THE O RDER DATED 16.09.2015 IN APPEAL NO. 537/14-15 OF CIT(A)-2 PASS ED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-2, NEW DELHI ( HEREINAFTER FOR SHORT CALLED AS THE LD. CIT (A)) ON THE FOLLOWING GROUN DS: 1. THAT THE ORDERS PASSED BY THE ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS)-2, NEW DELHI ARE BAD IN LAW AN D VOID AB INITIO. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN CONFIRMING THE PENALTY OF RS. 10,000/- IMPOSED BY THE ASSESSING OFFICER U/S 271(1)(C) OF THE I.T. ACT, 19 61. 3. THE APPELLANT CRAVES PERMISSION TO ADD, AMEND, A LTER OR VARY ALL OR ANY GROUNDS OF APPEAL ON OR BEFORE THE DATE OF HEARING OF THE APPEAL. DATE OF HEARING 19.09.2017 DATE OF PRONOUNCEMENT 09.10.2017 2 ITA NO. 6260/DEL/2015 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ON 26.08.2013 AND NOTICE U/S 142(1) OF THE INCOME T AX ACT, 1961 (FOR SHORT CALLED AS THE ACT) WAS ISSUED ON 30.04.2014 FIXING THE DATE FOR HEARING ON 09.05.2014. ACCORDING TO THE ASSESSEE T HEY HAVE ATTENDED BEFORE THE ASSESSING OFFICER ON THAT DAY SEEKING TI ME FOR FILING THE DETAILS. SUBSEQUENTLY, THEY RECEIVED A NOTICE DATED 22.09.20 14 U/S 143(2) OF THE ACT FIXING UP THE DATE OF HEARING ON 26.09.2014 AND IN THE MEANWHILE JURISDICTION OF THE CASE WAS TRANSFERRED FROM CENTR AL CIRCLE 23, NEW DELHI TO CIRCLE 3(1), NEW DELHI. HOWEVER, THE ASSESSEE R ECEIVED A NOTICE DATED 26.09.2014 U/S 271 (1)(B) OF THE ACT REQUIRING TO S HOW CAUSE AS TO WHY THE PENALTY SHOULD NOT BE LEVIED FOR NON ATTENDANCE IN RESPECT OF THE NOTICE DATED 30.04.2014 ISSUED U/S 142(1) OF THE ACT. ASS ESSEE MADE DUE SUBMISSIONS BEFORE THE AO TO THE EFFECT THAT THERE WAS NO DEFAULT ON THEIR PART IN COMPLYING WITH THE NOTICE. HOWEVER, BY WAY OF ORDER DATED 07.10.2014 AO LEVIED A PENALTY OF RS. 10,000/- U/S 271(1)(B) OF THE ACT. APPEAL OF THE ASSESSEE WAS DISMISSED BY THE LD. CIT (A) BY WAY OF IMPUGNED ORDER. HENCE, THIS APPEAL BY THE ASSESSEE . 3. IT IS THE SUBMISSION OF THE LD. AR THAT AS A MAT TER OF FACT ASSESSEE ENTERED APPEARANCE ON 09.10.2014 BEFORE THE AO SEEK ING TIME FOR SUBMISSION OF THE DETAILS BUT IN VIEW OF THE ENSUIN G RETIREMENT OF THE AO 3 ITA NO. 6260/DEL/2015 THEY WERE TOLD THAT A FRESH NOTICE WOULD BE ISSUED FIXING THE DATE OF HEARING AND SUBSEQUENTLY AFTER THE TRANSFER OF JURI SDICTION AND CASE FROM CENTRAL CIRCLE 23, NEW DELHI TO CIRCLE 3(1), NEW DE LHI NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 22.09.2014 FIXING UP THE DATE OF HEARING ON 26.09.2014. RECORD SPEAKS THAT THIS FACT WAS ARGUE D BEFORE THE AO IN 271(1)(C) PROCEEDINGS OF THE ACT AND WITHOUT STATIN G WHETHER SUCH STATEMENT WAS FACTUALLY CORRECT OR NOT, THE LD. AO RECORDED THAT MERE ATTENDING THE OFFICE DOES NOT AMOUNT TO NECESSARY C OMPLIANCE WITH THE NOTICE. IF THE ASSESSEE APPEARED ON 09.05.2014 AND SOUGHT TIME, IT CANNOT BE SAID THAT THE ASSESSEE IS AT DEFAULT FOR NON COMPLIANCE WITH THE NOTICE IN AS MUCH AS THERE TOOK PLACE THE TRANSFER OF JURISDICTION AND CASE FROM ONE CIRCLE TO ANOTHER AND A FRESH NOTICE U/S 1 42(2) OF THE ACT WAS ISSUED FOR THE APPEARANCE OF THE ASSESSEE ON 26.09. 2014. EVEN THE LD. CIT (A) ALSO DID NOT ADVERT TO THE FACTUAL CORRECTN ESS OR OTHERWISE OF THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE APPEAR ED BEFORE THE AO, BUT AO HIMSELF DID NOT CONDUCT THE PROCEEDINGS ON T HAT DATE. LD. CIT (A) DOES NOT SEEM TO HAVE ADVERTED TO THIS ASPECT BUT S IMPLY REITERATED THE OBSERVATIONS OF THE AO THAT IT WAS NOT MERELY ATTEN DING THE OFFICE OF AO ON A SPECIFIED DATE BUT WHAT WAS REQUIRED OF THE ASSES SEE WAS THE COMPLIANCE WITH THE REQUIREMENT OF THE NOTICE DATED 30.04.2014. IN THE 4 ITA NO. 6260/DEL/2015 CIRCUMSTANCES, WE FIND IT DIFFICULT TO HOLD THAT TH ERE IS ANY WILLFUL NON COMPLIANCE WITH THE REQUIREMENT OF THE NOTICE DATED 30.04.2014 AND THE AO WAS NOT IN A POSITION TO CONFIRM OR DENY WHETHER ON 09.05.2014 THE ASSESSEE MADE A REQUEST FOR TIME FOR COMPLIANCE WIT H THE REQUIREMENTS OF THE NOTICE DATED 30.04.2014. HENCE, WE FIND IT DIF FICULT TO SUSTAIN THE PENALTY AND ACCORDINGLY DIRECT THE AO TO DELETE THE SAME. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.10.2017 SD/- SD/- (G.D. AGRAWAL) (K.N. CHARY) PRESIDENT JUDICIAL MEMBER DATED: 09.10.2017 *KAVITA ARORA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT TRUE COPY ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 6260/DEL/2015