Kartikay Nayyar, New Delhi V. ACIT Central Circle - 20, New Delhi

ITA 6409/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 5854 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 31-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: FARHAT KHAN
• Keywords: Reasonable cause
• Section: 273B; 143(3); 142(1); 153A; 274; 143(2)

Judgement Text

1 | P A GE IN THE INCOME TAX APPELLATE TRIBUNAL DELHI SMC-1 BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.6409/DEL/2019 ASSESSMENT YEAR : 2011-12 KARTIKAY NAYYAR, C/O-ANIL JAIN, DD & CO., 611, SURYA KIRAN BUILDING, K.G.MARG, NEW DELHI-110026. PAN-ALXPN4900G VS ACIT, CENTRAL CIRCLE-20, NEW DELHI. APPELLANT RESPONDENT APPELLANT BY SH. ANIL KUMAR JAIN, CA RESPONDENT BY SH. FARHAT KHAN, SR.DR DATE OF HEARING 30.03.2021 DATE OF PRONOUNCEMENT 2 8 . 04.2021 ORDER PER KUL BHARAT, JM : THIS APPEAL FILED BY THE ASSESSEE FOR THE ASSESSMEN T YEAR 2011-12 IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A)-27, NE W DELHI DATED 28.05.2019. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND THE PROVISIONS OF THE LAW, THE ORDER PASSED BY LD. ASSE SSING OFFICER IS BAD IN LAW. 2. THAT THE LD. ASSESSING OFFICER WAS NOT JUSTIFIED ON FACTS AND CIRCUMSTANCES OF THE CASE IN IMPOSING PENALTY OF RS .10,000/- U/S 271(1)(B) OF THE IT ACT ON ACCOUNT OF ALLEGED FAILURE IN COMP LIANCE TO NOTICE U/S 142(1) OF THE ACT. 2. THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS AGAI NST THE IMPOSING OF PENALTY OF RS. 10,000/- U/S 271(1)(B) OF THE INCOME TAX ACT, 1961 (THE ACT). ITA NO.6409/DEL/2019 2 | P A GE 3. FACTS GIVING RISE TO THE PRESENT APPEAL ARE THAT NOTICE U/S 153A OF THE ACT WAS ISSUED ON 22.09.2017 TO THE ASSESSEE. FURTHER, A SHOW CAUSE NOTICE DATED 22.03.2018 WAS ISSUED FIXING THE CASE FOR HEARING ON 28.03.2018. ANOTHER NOTICE U/S 153A OF THE ACT WAS ISSUED ON 02.08.2018 . AGAIN, ANOTHER NOTICE WAS AGAIN ISSUED ON 13.08.2018 U/S 143(2) OF THE AC T ALONGWITH QUESTIONNAIRE FIXING THE DATE OF HEARING ON 23.08.2018. ANOTHER NOTICE DATED 07.09.2018 WAS ISSUED AND THE CASE WAS FIXED FOR HEARING ON 14.09. 2018. ON THE COMPLIANCE OF THE SAID NOTICE, THE ASSESSEE HAD FILED INCOME TAX RETURN. HOWEVER, THE ASSESSING OFFICER ISSUED ANOTHER NOTICE U/S 142(1) OF THE ACT ON 05.10.2018 FIXING THE DATE OF HEARING ON 25.10.2018. IT IS OB SERVED BY THE ASSESSING OFFICER THAT ON THE DATE OF HEARING, NO ONE WAS AP PEARED. THEREFORE, THE ASSESSING OFFICER ISSUED A PENALTY NOTICE U/S 274 R .W.S. 271(1)(B) OF THE ACT FIXING THE CASE FOR HEARING ON 19.11.2018. ON 19.1 1.2018, NO ONE WAS APPEARED, THEREFORE, THE ASSESSING OFFICER IMPOSED PENALTY OF RS.10,000/- U/S 271(1)(B) OF THE ACT VIDE ORDER DATED 06.12.2018. 4. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED APPEAL BEFORE LD.CIT(A) WHO AFTER CONSIDERING THE SUBMISSIONS, DISMISSED THE AP PEAL OF THE ASSESSEE. 5. NOW, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. 6. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS SHOWN SUFFICIENT REASONS FOR NON-COMPLIANCE OF THE NOTICE . HE SUBMITTED THAT THE AUTHORITIES BELOW HAD NOT TAKEN THE FACTS IN RIGHT PERSPECTIVE. HE FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAS NOTED THAT IN RESPONSE THE NOTICE, THE ASSESSEE HAD FILED INCOME TAX RETURNS AS WELL AS BA NK STATEMENTS. HE ITA NO.6409/DEL/2019 3 | P A GE SUBMITTED THAT IT IS NOT THE CASE WHERE THERE WAS N O COMPLIANCE ON THE PART OF THE ASSESSEE. HE FURTHER SUBMITTED THAT UNDISPUTED LY THE ASSESSMENT ORDER WAS PASSED U/S 153A R.W.S. 143(3) OF THE ACT. IT I S NOT THE CASE WHERE THE ASSESSEE HAS NOT PARTICIPATED IN THE ASSESSMENT PRO CEEDINGS. 7. PER CONTRA, LD. SR.DR OPPOSED THE SUBMISSIONS AN D SUPPORTED THE ORDER OF THE AUTHORITIES BELOW. 8. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL AVAILABLE ON RECORDS. IT IS THE CONTENTION OF THE ASSESSEE THAT HE HAS REASONABLE CAUSE FOR NON-APPEARANCE BEFORE THE ASSESSING OFFICER. IT IS ALSO SUBMITTED THAT UNDER THE IDENTICAL FACTS, THE TRIBUNAL HAS DELETED THE P ENALTY. LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON THE DECISION OF GYAN MATA RADHA SATYAM KRIYAYOG ASHRAM RESEARCH INSTITUTE VS. INCOME TAX OFFICER I N ITA NO.95/ALLD./2020 VIDE ORDER DATED 25.02.2021 WHEREIN THE TRIBUNAL HAS HEL D AS UNDER:- 6. ON THE ONE HAND, THE ASSESSING OFFICER HAS GIV EN THE DATE OF COMPLIANCES IN THE ABOVE TABLE WHEREAS THE PENALTY WAS IMPOSED ON THE GROUND THAT THE ABOVE NOTICES WERE NOT COMPLIED BY THE ASSESSEE. FURTHER, THE ASSESSING OFFICER HAS ALSO STATED THAT THE ASSE SSEE HAS NOT MADE COMPLIANCE TO THE SHOW CAUSE NOTICE ISSUED U/S. 271 (1)(B). HOWEVER, THAT CANNOT BE A GROUND FOR IMPOSITION OF PENALTY U/S. 2 71(1)(B) OF THE ACT. IN THE QUANTUM APPEAL, THE LD. CIT(A) VIDE ITS ORDER D ATED 22.09.2020 HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER AND THEREFORE, IT AMOUNTS TO ACCEPTANCE OF THE EXPLANATION OF THE ASS ESSEE FILED DURING THE ASSESSMENT PROCEEDINGS. HENCE, IN THE FACTS AND CIR CUMSTANCES OF THE CASE AND IN VIEW OF SECTION 273B OF THE ACT WHEN THE ASSESSEE HAS FINALLY COMPLIED WITH THE NOTICE ISSUED BY THE ASSESSING OF FICER THE PENALTY IS NOT IMPOSABLE AS THE EXPLANATION FILED BY THE ITA NO.95 /ALLD/2020 GYAN ITA NO.6409/DEL/2019 4 | P A GE MATA RADHA SATYAM KRIYAYOG ASHRAM RESEARCH ASSESSEE WAS FINALLY FOUND TO BE CORRECT AND ACCEPTED IN THE QUANTUM APP EAL. CONSEQUENTLY THE PENALTY LEVIED U/S. 271(1)(B) OF THE ACT IS DELETED . 9. RELIANCE IS ALSO PLACED ON THE DECISION OF CO-OR DINATE BENCH OF THIS TRIBUNAL IN ANIL KUMAR SETH VS DCIT IN ITA NOS.7516 TO 7522/DEL /2017 VIDE ORDER DATED 22.06.2018. 10. RESPECTFULLY FOLLOWING VIEW OF THE CO-ORDINATE BENCHES (SUPRA), THE PENALTY U/S 271(1)(B) OF THE ACT ON ACCOUNT OF ALLE GED FAILURE IN COMPLIANCE TO NOTICE U/S 142(1) OF THE ACT, INVOLVED IN RESPECT O F ASSESSMENT YEAR 2011-12 STAND DELETED AND THE GROUNDS RAISED BY THE ASSESSE E IN THIS APPEAL ARE ALLOWED. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIR TUAL HEARING IN THE PRESENCE OF BOTH THE PARTIES ON 28 TH APRIL, 2021. SD/- (KUL BHARAT) JUDICIAL MEMBER * AMIT KUMAR * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI