Smt. Abha Gupta, New Delhi V. ACIT, New Delhi

ITA 6287/DEL/2014

• Counselvise Citation: 628720114 RSA 2014
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 2
• Next Hearing Date: 15-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 17-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P D TAN EJA
• Assessee Lawyers: SB GUPTA
• Keywords: Initiation of penalty proceedings; Reasonable cause
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC - 2 , NEW DELHI BEFORE SH. N. K. SAINI, A CCOUNTANT MEMBER ITA NO S . 6284 TO 6286 /DEL/2014 : ASSTT. YEAR S : 200 5 - 0 6 TO 2007 - 08 SMT. CHANDRAWATI GUPTA, A - 1, CC - COLONY, OPP. R.P, BAGH, DELHI VS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 12, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A EZPC2379F ITA NOS. 6287 TO 6289 /DEL/2014 : ASSTT. YEAR S : 200 5 - 0 6 TO 2007 - 08 SMT . ABHA GUPTA A - 1, CC - COLONY, OPP. R.P, BAGH, DELHI VS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 12, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A ERPG0334E ITA NOS. 6272 TO 6274/DEL/2014 : ASSTT. YEAR S : 200 5 - 0 6 TO 2007 - 08 SMT . RAJNI GUPTA H.NO. 11, BLOCK - 5, ROOP NAGAR , DELHI - 110007 VS ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE - 12, NEW DELHI (APPELLANT) (RESPONDENT) PAN NO. A HKPG3561B ASSESSEE BY : SH. S. B. GUPTA, CA REVENUE BY : SH. P. D. TANEJA, SR. DR DATE OF HEARING : 1 5 .10 .2015 DATE OF PRONOUNCEMENT : 04 .11 .2015 ORDER PER N. K. SAINI, AM: THESE APPEAL S BY THE ASSESSEE S ARE DIRECTED AGAINST THE SEPARATE ORDER S EACH DATED 01.09.201 4 IN THE CASE OF SMT. CHANDRAWATI GUPTA AND SMT. RAJNI GUPTA AND DATED ITA NO S. 6284 TO 6286, 6287 TO 6289 & 6272 TO 6274 /DEL /2014 CHANDRAWATI , ABHA & RAJNI GUPTA S 2 29.08.2014 IN THE CASE OF SMT. ABHA GUPTA PASSED BY THE LD. CIT(A) - XXXI , NEW DELHI . 2. COMMON ISSUES ARE INVOLVED IN THESE APPEALS WHICH WERE HEARD TOGETHER , SO THESE ARE BEING DISPOSE D OFF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. 3. FIRST I WILL DEAL WITH THE APPEAL IN ITA NO. 6284 /DEL/2 014 FOR THE ASSESSMENT YEAR 2005 - 06 IN THE CASE OF SMT. CHANDRAWATI GUPTA . FOLLOWING GROUND HAS BEEN RAISED IN THIS APPEAL : THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, INITIATION OF PENALTY PROCEEDINGS AGAINST THE ASSESSEE UNDER SECTION 274 READ WITH SECTION 271(1)(B) AND IMPOSITION OF PENALTY OF RS. 10,000/ - UPON THE ASSESSEE UNDER SECTION 271(1)(B) IS ILLEGAL AND UN JUSTIFIED AND, THEREFORE, PENALTY IMPOSED SHOULD BE DELETED. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE IN RESPONSE TO NOTICE U/S 153A/153C OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FILED THE RETURN OF INCOME ON 13.02.2012 . SUBSEQUENTLY, NOTICES U/S 143(2)/142(1) OF THE ACT WERE ISSUED ON 19.09.2012 FIXING THE CASE FOR HEARING ON 09.10.2012. ON THE SAID DATE NOBODY ATTENDED, NOR ANY REPLY HAD BEEN RECEIVED FROM THE ASSESSEE. THE AO CONSIDERED THE SAME AS THE VIOLATION OF TH E PROVISIONS OF SECTION 271(1)(B) OF THE ACT. ITA NO S. 6284 TO 6286, 6287 TO 6289 & 6272 TO 6274 /DEL /2014 CHANDRAWATI , ABHA & RAJNI GUPTA S 3 ACCORDINGLY, PENALTY NOTICE U/S 271(1)(B) OF THE ACT WAS ISSUED TO THE ASSESSEE ON 29.01.2013 , ASK ING HER TO EXPLAIN AS TO WHY PENALTY UNDER THE SAID SECTION MAY NOT BE LEVIED. THE S H O W CAUSE NOTICE WAS FIXED F OR HEARING ON 04.02.2013. ON THE SAID DATE ALSO NOBODY ATTENDED, THEREFORE, THE AO HELD THAT THE ASSESSEE HAD NO EXPLANATION FOR THE DEFAULT AND ACCORDINGLY LEVIED THE PENALTY OF RS. 10,000/ - U/S 271(1)(B) OF THE ACT. 5. BEING AGGRIEVED THE ASSESSEE CAR RIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT MRS. ANJU GUPTA, SISTER - IN - LAW OF THE ASSESSEE WAS SUFFERING FROM SEVERE DISEASE AND HAD TO BE HOSPITALIZED ON 06.10.2012. THEREAFTER ON 09.10.2012, MR. SATYA PRAKASH GUPTA HEAD OF THE FAMILY AND FATHER - IN - LAW OF THE ASSESSEE HAD TO BE HOSPITALIZED DUE TO HEART ATTACK AND THE WHOLE FAMILY WAS DISTURBED, THEREFORE, THERE WAS NO COMPLIANCE FOR THE NOTICES OF HEARING ON 09.10.2012. 6. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSER VED THAT THE ASSESSEE DID NOT GIVE ANY SUCH REPLY BEFORE THE AO. HOWEVER, HE HAD TAKEN NOTE OF THIS FACT THAT THE ASSESSEE HAD DULY REPLIED TO THE LETTERS OF THE AO ON SUBSEQUENT DATES. THE LD. CIT(A) ALSO OBSERVED THAT THE ASSESSMENT PROCEEDINGS WERE TIME BARRING IN NATURE, THEREFORE, THE AO WAS IN RACE AGAINST TIME, BUT THE DETAILS REQUIRED BY HIM HAD NOT BEEN FILED AND IF THE AO WAS TO GET ALL THE DETAILS AT THE 11 TH HOUR, IT WOULD NOT BE APPROPRIATE FOR COMPLETING THE ASSESSMENT. ITA NO S. 6284 TO 6286, 6287 TO 6289 & 6272 TO 6274 /DEL /2014 CHANDRAWATI , ABHA & RAJNI GUPTA S 4 ACCORDING TO THE LD. CI T(A) THE REASONS GIVEN BY THE ASSESSEE DID NOT EXPLAIN THE TOTAL NON - COMPLIANCE. HOWEVER, THE LD. CIT(A) HELD THAT LEVYING THE PENALTY FOR 7 YEARS WOULD BE HARSH ON THE ASSESSEE. HE, THEREFORE, CONSIDERED IT APPROPRIATE IF THE PENALTIES OF RS. 10,000/ - EAC H ONLY FOR 3 YEARS OUT OF THE 7 ASSESSMENT YEARS INVOLVED WERE TO BE CONFIRMED. HE ACCORDINGLY CONFIRMED THE PENALTY TO THE EXTENT OF RS. 10,000/ - EACH FOR THE ASSESSMENT YEARS 2005 - 06 TO 2007 - 08 AND DELETED THE PENALTIES FOR THE ASSESSMENT YEARS 2008 - 09 T O 2011 - 12. NOW THE ASSESSEE IS IN APPEAL. 7 . DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THE FACTS OF THE PRESENT CASE ARE IDENTICAL TO THE FACTS INVOLVED IN THE CASE OF SMT. USHA GUPTA, NEW DELHI VS ACIT IN ITA NO. 6368/DEL/2014 WHICH HAS BEEN HEARD ON 14.10.2015. THEREFORE, SAME COURSE IS TO BE ADOPTED FOR THESE APPEALS. THE LD. DR ALTHOUGH SUPPORTED THE ORDERS OF THE LD. CIT(A) BUT COULD NOT CONTROVERT THE AFORESAID CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE FACTS IN THE PRESENT CASES ARE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF SMT. USHA GUPTA (SUPRA). 8 . I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESEN T CASE, IT IS NOTICED THAT THE FACTS ARE IDENTICAL TO THE FACTS INVOLVED IN THE CASE OF SMT. USHA GUPTA VS ACIT (SUPRA) AND EVEN THE RIVAL CONTENTIONS ARE ITA NO S. 6284 TO 6286, 6287 TO 6289 & 6272 TO 6274 /DEL /2014 CHANDRAWATI , ABHA & RAJNI GUPTA S 5 ALSO ON THE SAME FOOTING AS WERE IN THE SAID CASE IN ITA NO. 6368/DEL/2014 FOR THE ASSESSMENT YEAR 20 07 - 08. I HAVE ALREADY DISPOSED OFF THE AB OVE SAID REFERRED TO CASE OF SM T. USHA GUPTA VIDE THE ORDER OF EVEN DATE AND THE RELEVANT FINDINGS H AVE BEEN GIVEN IN PARA 9 OF SAID ORDER WHICH READ AS UNDER: 9. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PART IES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE AO LEVIED THE PENALTY FOR NON - APPEARANCE OF THE ASSESSEE ON 09.10.2012, FOR THE SAID DATE NOTICES WERE ISSUED U/S 143(2)/142(1) OF THE ACT. THE EX PLANATION OF THE ASSESSEE BEFORE THE LD. CIT(A) WAS THAT HER SISTER - IN - LAW MRS. ANJU GUPTA WAS SUFFERING FROM SEVERE DISEASE AND HAD TO BE HOSPITALIZED ON 06.10.2012. THEREAFTER ON THE DATE OF HEARING I.E. 09.10.2012, SH. SATYA PRAKASH GUPTA HEAD OF THE F AMILY AND FATHER - IN - LAW OF THE ASSESSEE BECAME ILL AND HAD TO BE HOSPITALIZED DUE TO HEART ATTACK. IN MY OPINION THERE WAS A REASONABLE CAUSE FOR NON - APPEARANCE FOR THE HEARING FIXED ON 09.10.2012, AS SUCH THE CONFIRMATION OF PENALTY LEVIED BY THE AO U/ S 271(1)(B) OF THE ACT WAS NOT JUSTIFIED. IN THE PRESENT CASE, IT APPEARS THAT THE AO LEVIED THE PENALTY FOR 7 ASSESSMENT YEARS RUNNING FROM 2005 - 06 TO 2011 - 12 AND THE LD. CIT(A) DELETED THE PENALTY FOR THE 4 ASSESSMENT YEARS I.E. THE ASSESSMENT YEARS 2008 - 09 TO 2011 - 12, CONSIDERING THE EXPLANATION OF THE ASSESSEE AS PLAUSIBLE. HOWEVER, THE SAME EXPLANATION WAS NOT CONSIDERED AS PROPER FOR THE REMAINING ASSESSMENT YEARS I.E. ASSESSMENT YEARS 2005 - 06 TO 2007 - 08. IN MY OPINION, THE STAND TAKEN BY THE LD. CIT( A) WAS NOT JUSTIFIED PARTICULARLY WHEN HE WAS SATISFIED THAT THERE WAS A PROPER AND PLAUSIBLE EXPLANATION FOR THE 4 OUT OF THE 7 ASSESSMENT YEARS FOR WHICH PENALTY WAS LEVIED BY THE AO U/S 271(1)(B) OF THE ACT. I, THEREFORE, ITA NO S. 6284 TO 6286, 6287 TO 6289 & 6272 TO 6274 /DEL /2014 CHANDRAWATI , ABHA & RAJNI GUPTA S 6 CONSIDERING THE TOTALITY OF THE FACTS DELETE THE PENALTY LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A). 9 . SO, RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER OF EVEN DATE THE PENALTY LEVIED BY THE AO AND SUSTAINED BY THE LD. CIT(A) U/S 271(1)(B) OF THE ACT ARE DELETED. 10 . THE FACTS IN OTH ER APPEALS BEING ITA NOS. 6285 & 6286 /DEL/2014 IN ASSESSEE S OWN CASE , ITA NOS. 6287 TO 6289 /DEL/2014 IN THE CASE OF SMT. ABHA GUPTA AND ITA NOS. 6272 TO 6274/DEL/2014 IN THE CASE OF SMT. RAJNI GUPTA ARE SIMILAR TO THE FACTS IN ITA NO. 6284 /DEL/2014, WHICH HAS BEEN DISPOSED OFF IN THE FORMER PART OF THIS ORDER AND THE PENALTY U/S 271(1)(B) OF THE ACT HAS BEEN DELETED IN THE SAID APPEAL. THEREFORE, RESPECTFULLY FOLLOWING THE FINDINGS AS A FORESAID, I DELETE THE PENALTY LEVIED U/S 271(1)(B) OF THE ACT IN ALL THE OTHER APPEALS UNDER CONSIDERATION . 11 . IN THE RESULT, ALL THE APPEAL S OF THE ASSESSEE S ARE ALLOWED . ( ORDER PRON OUNCED IN THE COURT ON 04 /1 1 /2015 ) SD/ - (N. K. SAINI) ACCOUNTANT MEMBER DATED: 04 /1 1 /2015 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR