SEEMA ANAND, NEW DELHI V. ITO, WARD- 49(1), NEW DELHI

ITA 6310/DEL/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9943 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2013-2014
• Appeal Filed On: 10-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Keywords: Set aside
• Section: 143(3); 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) (THROUGH VIDEO CONFERENCE ) BEFORE SHRI O.P.KANT, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER ITA NO.6310/DEL./2017 ASSESSMENT YEAR : 13-14 SEEMA ANAND VS. ITO, 9-66, GROUND FLOOR, WARD-49(1), CHANDIGARH NEW DELHI NEW DELHI-110015 (PAN :ASTPA9963B) (APPELLANT) (RESPONDE NT) ASSESSEE BY : NONE REVENUE BY : SHRI PRAKASH DUBEY, SR. DR DATE OF HEARING : 08.07.2021 DATE OF ORDER : 27.07.2021 O R D E R PER KULDIP SINGH, JUDICIAL MEMBER : APPELLANT SEEMA ANAND, NEW DELHI (HEREIN AFTER REFERRED TO AS THE ASSESSEE), BY FILING THE PRESENT APPEAL SO UGHT TO SET ASIDE THE IMPUGNED ORDER DATED 16.08.2017 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-17, NEW DELHI, AFFIRMING TH E PENALTY ORDER PASSED U/S 271(1)(B) OF THE INCOME TAX ACT, 1 961 (FOR SHORT THE ACT), QUA THE ASSESSMENT YEAR 2013-14 ON THE GROUNDS INTER ALIA THAT :- ITA NO.6310/DEL./2017 2 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD . CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFORMING PENALTY U/S 271(1)(B) IMPOSED BY AO WITHOUT APPRECIATING THE FA CT THAT THE FINAL ASSESSMENT ORDER HAS BEEN FRAMED BY AO U/S 14 3(3) AND SUBSEQUENT COMPLIANCE AMOUNTS TO GOOD COMPLIANCE TO THE NOTICES ISSUE U/S 142(1)/143(2). 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN IGNORING THE BINDING D ECISIONS OF THE COORDINATE BENCH OF THE JURISDICTION ITAT OF DELHI AND HAS THEREBY ERRED IN CONFORMING PENALTY OF RS. 40,000 U \S 271(B). 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING T HAT THE LD. AO ASSUMED JURISDICTION U\S 271(1 )(B) ON THE BASIS OF IMPROPER AND INCORRECT NOTICES ISSUED U\S 274 OF INCOME TAX,1961 . 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFORMING EIGHT P ENALTIES IMPOSED BY AO U\S 271(1 )(B) WITHOUT APPRECIATING T HE FACTS THAT THE ASSESSE HAS NOT ACTED DELIBERATELY IN DEFIANCE OF LAW AND HAS NOT ACTED UNCONSCIOUS DISREGARD OBLIGATION. 5. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFORMING EIGHT PENAL TIES IMPOSED BY AO THROUGH A CUMULATIVE ORDERS WHEREAS NO SHOW CAUS E NOTICE U\S 274 WAS ISSUED OR SERVED UPON THE ASSESSE CLARIFYIN G THE EIGHT DIFFERENT DELIBERATE DEFIANCE ON THE PART OF THE AS SESSE. PRAYER THE ASSESSEE PRAYS THAT ORDER OF LD. CIT(A) CONFORM ING PENALTY U/S 271(1)(B) MAY BE DELETED. 2. RETURN OF INCOME FILED BY THE ASSESSEE FOR A.Y. 2013-14 WAS SUBJECTED TO SCRUTINY AND CONSEQUENTLY NOTICE U/S 1 43(2) WAS ISSUED FOR 12.09.2014 AND 07.08.2015 BUT NONE APPEA RED ON BEHALF OF THE ASSESSEE BUT SUBSEQUENTLY REPRESENTATIVE OF THE ASSESSEE FILED SOME DETAILS AND CONTINUED TO APPEAR ON NUMEROUS DA TES FIXED BY THE ASSESSING OFFICER BUT AGAIN FAILED TO ATTEND T HE PROCEEDINGS ON FOUR OCCASIONS. ASSESSING OFFICER FRAMED THE ASSES SMENT U/S ITA NO.6310/DEL./2017 3 143(3) OF THE ACT AT THE TOTAL INCOME OF RS. 1,12, 04,450/-. AO AFTER RECORDING HIS SATISFACTION FOR NON-COMPLIANCE OF STATUTORY NOTICES INITIATED THE PENALTY PROCEEDING U/S 271(1) (B) BY WAY OF ISSUANCE OF NOTICE U/S 274 READ WITH SECTION 271 OF THE ACT. DECLINING THE CONTENTIONS RAISED BY THE ASSESSEE, A O PROCEEDED TO LEVY THE PENALTY OF RS. 80,000/- I.E. RS. 10,000/- FOR EACH DEFAULT U/S 271(1)(B) OF THE ACT. 3. ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A) BY WAY OF FILING THE APPEAL WHO HAS ACCEPTED THE APPEAL BY RE DUCING THE PENALTY OF RS. 40,000/- FROM 80,000/-. FEELING AGGR IEVED WITH ORDER PASSED BY THE LD. CIT(A), ASSESSEE HAS COME U P BEFORE THE TRIBUNAL BY WAY OF FILING THE PRESENT APPEAL. 4. ASSESSEE HAS NOT PREFERRED TO PUT IN APPEARANCE DESPITE ISSUANCE OF THE NOTICE AND CONSEQUENTLY, WE PROCEED ED TO DECIDE THE PRESENT APPEAL WITH THE ASSISTANCE OF THE LD. D R AS WELL AS ON THE BASIS OF DOCUMENTS AVAILABLE ON THE FILE. 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E FOR THE REVENUE TO THE APPEAL, GONE THROUGH THE DOCUMENTS R ELIED UPON AND ORDERS PASSED BY THE REVENUE AUTHORITIES BELOW IN T HE LIGHT OF THE FACTS AND CIRCUMSTANCES OF THE CASE. ITA NO.6310/DEL./2017 4 6. UNDISPUTEDLY, ASSESSMENT IN THIS CASE HAS BEEN F RAMED U/S 143(3) OF THE ACT AT THE TOTAL INCOME OF RS. 1, 12, 04,450/-. IT IS ALSO NOT IN DISPUTE THAT REPRESENTATIVE OF THE ASSESSEE PUT IN APPEARANCE DURING ASSESSMENT PROCEEDINGS ON NUMEROUS DATES AND HAD FILED SOME DETAILS ENABLING THE ASSESSING OFFICER TO FRAM E THE ASSESSMENT U/S 143(3) OF THE ACT. 7. FROM THE UNDISPUTED FACTS NARRATED ABOVE, IT IS PROVED ON RECORD THAT THOUGH THE ASSESSEE HAS DEFAULTED IN PU TTING IN APPEARANCE ON FOUR OCCASIONS BEFORE ASSESSING OFFIC ER BUT HE HAS BROUGHT ON RECORD REQUISITE DOCUMENTS/ CLARIFICATIO NS SOUGHT FOR BY THE AO ENABLING HIM TO FRAME ASSESSMENT U/S 143(3) OF THE ACT. SO HER EARLIER DEFAULTS IN PUTTING IN APPEARANCE BY THE ASSESSEE HAS BEEN CONDONED BY THE ASSESSING OFFICER AND IN THESE CIRCUMSTANCES PENALTY U/S 271(1)(B) OF THE ACT IS N OT SUSTAINABLE. 8. COORDINATE BENCH OF THE TRIBUNAL IN CASE OF AKHIL BHARTIYA PRATHMIC SHIKSHAK SANGH BHAWAN TRUST VS. ADIT REPOR TED IN [2008] 115 TTJ 419 (DEL.) DEALT WITH IDENTICAL ISSUE AND HELD THAT THE PENALTY LEVIED U/S 271(1)(B) IS NOT SUSTAINABLE ON THE GROUND THAT WHEN THE ASSESSMENT HAS BEEN MADE U/S 143(3) OF THE ACT AND NOT U/S 144, SUBSEQUENT COMPLIANCE IN THE ASSESSMEN T PROCEEDINGS HAS BEEN CONSIDERED AS GOOD COMPLIANCE AND DEFAULTS COMMITTED ITA NO.6310/DEL./2017 5 EARLIER IMPLICITLY WERE CONDONED BY THE AO. 9. IN VIEW OF WHAT HAS BEEN DISCUSSED ABOVE IMPUGN ED ORDER PASSED BY LD. CIT(A) IS NOT SUSTAINABLE, HENCE SET ASIDE AND PENALTY LEVIED / CONFIRMED STANDS DELETED. CONSEQUENTLY, A PPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 27 TH DAY OF JULY, 2021. SD/- SD/- (O.P.KANT) (KULDIP SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 27 TH DAY OF JULY, 2021 BINITA COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.