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

ITA 6397/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5275 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 24-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R C D AN DE
• Assessee Lawyers: SB GUPTA
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MISS SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO. 6 393 TO 6395/DEL./2014 ASSTT. YEAR : 2005-06, 2006-07, 2007-08 ITA NO. 6396 TO 6398/DEL/2014 ASSTT. YEAR : 20 05-06, 2006-07, 2007-08 ANJU GUPTA A-1, CC-COLONY, OPP. R.P.BAGH DELHI PAN : AEIPG5845H VS. A CIT CENTRAL CIRCLE-12 NEW DELHI APPELLANT RESPONDENT ASSESSEE BY : SH. S.B.GUPTA , CA RE VENUE BY : S H. R . C . D AN DE , SR. D.R. DATE OF HEARING: 0 3 0 8 2017 DATE OF PRONOUNCEMENT: 03 0 8 2017 O R D E R PER R.K. PANDA, ACCOUNTANT MEMBER : THE ABOVE APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST THE COMMON ORDERS DATED 1 ST SEPTEMBER, 2014 OF THE CIT(A)-31, NEW DELHI RELATI NG TO A.YS. 2005-06 TO 2007-08 RESPECTIVELY. SINCE ID ENTICAL GROUNDS HAVE BEEN TAKEN BY THE ASSESSEE IN ALL THESE APPEALS, THEREFO RE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER. ITA NO.6393 TO 6398/DEL/2014 2 2. LEVY OF PENALTY OF RS. 10,000/- EACH U/S 271(1)( B) OF THE IT ACT BY THE AO AND UPHELD BY THE CIT(A) IS THE ONLY ISSUE RAISE D BY THE ASSESSEE IN THE GROUND OF APPEAL IN EACH APPEAL. 3. FACTS OF THE CASE IN BRIEF ARE THAT IN RESPONSE TO NOTICE U/S 153A/153C OF THE I.T.ACT, 1961, THE ASSESSEE FILED RETURN OF INCOME ON 13 TH FEBRUARY, 2012 FOR EACH OF THE ASSESSMENT YEARS MEN TIONED ABOVE. THE NOTICE U/S 143(2) ALONG WITH QUESTIONNAIRE U/S 142(1) WAS ISSUED TO THE ASSESSEE ON 19 TH SEPTEMBER, 2012, FIXING THE CASE FOR HEARING ON 9 TH OCTOBER, 2012. HOWEVER, DUE TO NON-APPEARANCE BY ANYBODY AND IN A BSENCE OF ANY WRITTEN REPLY FILED BY THE ASSESSEE, THE AO ISSUED NOTICE U /S 271(1)(B) OF THE IT ACT ASKING THE ASSESSEE TO EXPLAIN AS TO WHY PENALTY U/ S 271(1)(B) MAY NOT BE IMPOSED FOR THE DEFAULT. ALTHOUGH, THE DATE WAS FIX ED FOR 4 TH FEBRUARY, 2013, AGAIN NOBODY APPEARED ON THAT DATE. THE AO, THEREFO RE, LEVIED PENALTY OF RS. 10,000/- EACH U/S 271(1)(B) FOR EACH OF THE ASSESSM ENT YEAR UNDER CONSIDERATION. SIMILARLY DUE TO NON APPEARANCE ON 11.01.2013 IN RESPONSE TO NOTICE U/S 143(2) /142(1) THE AO AGAIN LEVIED PENAL TY OF RS. 10,000/- EACH U/S 271(1)(B) OF THE I.T.ACT, 1961 FOR EACH OF THE ABOV E YEARS. 4. IN APPEAL THE LD. CIT(A) UPHELD THE PENALTY LEVI ED BY THE AO BY OBSERVING AS UNDER : CONSIDERING THE ABOVE, THERE IS MERIT IN LEVYING P ENALTY INSPITE OF CERTAIN PROCEDURAL DEFICIENCIES POINTED OUT BY THE AR. HOWEVER, LEVYING PENALTY FOR 7 YEARS, IN MY VIEW, WOULD BE HARSH ON THE ASSE SSEE. THEREFORE, I AM OF THE VIEW THAT IN THE GIVEN CIRCUMSTANCES, IT WOULD BE A PPROPRIATE IF PENALTIES OF RS. 10,000/- EACH ONLY FOR 3 OF THE 7 ASSESSMENT YEARS INVOLVED ARE CONFIRMED AND THE PENALTIES FOR OTHER ASSESSMENT YEARS ARE DELETE D. THUS PENALTY TO THE EXTENT ITA NO.6393 TO 6398/DEL/2014 3 OF RS. 10,000/- EACH FOR A.YS. 2005-06, 2006-07 AND 2007-08 ARE CONFIRMED AND FOR A.YS. 2008-09, 2009-10, 2010-11 AND 2011-12 PEN ALTIES ARE HEREBY DELETED. 5. THUS THE LD. CIT(A) DELETED THE PENALTY FOR FOU R YEARS OUT OF 7 YEARS FOR THE FIRST DEFAULT AND ALSO FOR THE SUBSEQUENT D EFAULT. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE DECISI ON OF THE TRIBUNAL IN THE CASE OF SMT. USHA GUPTA AND OTHERS VIDE CONSOLIDATE D ORDER DATED 4.11.2015 AND IN THE CASE OF SARASWATI RESORTS PVT. LTD. AND OTHERS VIDE CONSOLIDATED ORDER DATED 4 TH JANUARY, 2016 WHERE PENALTY U/S 271(1)(B) LEVIED B Y THE AO AND CONFIRMED BY THE CIT(A) HAS BEEN DELETED. IT IS THE SUBMISSION OF THE LD. COUNSEL OF THE ASSESSEE THAT DUE TO ILLNESS OF SMT. ANJU GUPTA, NOBODY COULD APPEAR BEFORE THE AO AND THEREFORE, THE LEVY OF PEN ALTY U/S 271(1)(B) IS NOT JUSTIFIED. WE FIND FROM THE ORDER OF THE CIT(A) THA T THE AO HAD LEVIED PENALTY OF RS. 10,000/- EACH FOR 7 ASSESSMENT YEARS FOR EAC H DEFAULT AND THE LD. CIT(A) HAS SUSTAINED THE PENALTY FOR 3 YEARS AND HAS DELET ED THE PENALTY FOR THE REMAINING 4 YEARS FOR EACH DEFAULT. ALTHOUGH, THE L D. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE WAS NOT KEEPING WEL L, HOWEVER, WE FIND FROM THE ORDER OF THE TRIBUNAL THAT FOR EACH CASE, THE A SSESSEE HAS TAKEN THE GROUND REGARDING THE ILLNESS OF SMT. ANJU GUPTA. IT IS AN ADMITTED FACT THAT ANJU GUPTA WAS NOT APPEARING BEFORE THE AO AND SHE WAS REPRESE NTED BY A COUNSEL. HOWEVER, CONSIDERING THE TOTALITY OF THE FACTS OF T HE CASE, WE ARE OF THE CONSIDERED OPINION THAT LEVY OF PENALTY OF RS. 10,0 00/- ONLY FOR ITA NO. ITA NO.6393 TO 6398/DEL/2014 4 6393/DEL/2014 WILL BE JUSTIFIED AND PENALTY LEVIED IN OTHER CASES ARE DIRECTED TO BE DELETED. 8. IN THE RESULT ITA NO. 6393/DEL/2014 IS CONFIRM ED AND OTHER APPEALS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 03.08.2017. SD/ - SD/ - ( SUCHITRA KAMBLE ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 03.08.2017 *BINITA* COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO.6393 TO 6398/DEL/2014 5 DATE INITIAL 1. DRAFT DICTATED ON 3 /0 8 /2017 2. DRAFT PLACED BEFORE AUTHOR 3 /0 8 /2017 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER /0 8 /2017 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. /0 8 /2017 5. APPROVED DRAFT COMES TO THE SR.PS/PS /0 8 /2017 6. KEPT FOR PRONOUNCEMENT ON /0 8 /2017 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER. 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