Vinod Kumar Gupta, Kanpur V. Dy. Commissioner of Income Tax, Central Circle-V, Kanpur

ITA 648/LKW/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1876 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 21-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 144

Judgement Text

I.T.A. NO.648/LKW/2017 ASSESSMENT YEAR:2014-15 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.648/LKW/2017 ASSESSMENT YEAR:2014-15 SHRI VINOD KUMAR GUPTA, 1/33, KRISHNA NAGAR, KANPUR. PAN:ACZPG 0749 D VS. DY.C.I.T., CENTRAL CIURCLE-5, KANPUR. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(A)-IV, KANPUR DATED 31/07/2017. 2. THE ONLY GRIEVANCE RAISED BY THE ASSESSEE IN THI S APPEAL IS THE ACTION OF LEARNED CIT(A) BY WHICH HE HAS CONFIRMED THE PEN ALTY OF RS.10,000/- LEVIED U/S 271(1)(B) OF THE I.T. ACT. 3. LEARNED A. R. SUBMITTED THAT VARIOUS CASES WERE GOING ON AGAINST THE GROUP COMPANIES OF THE ASSESSEE AND ASSESSEE HAD AL SO FILED A PETITION BEFORE SETTLEMENT COMMISSION AND ASSESSEE WAS BUSY WITH THE PROCEEDINGS BEFORE SETTLEMENT COMMISSION AND THEREFORE, IT COUL D NOT ATTEND THE NOTICE ISSUED BY ASSESSING OFFICER. IN THIS REGARD OUR AT TENTION WAS INVITED TO COPY APPELLANT BY SHRI ASHISH JAISWAL, ADVOCATE RESPONDENT BY SHRI AMIT NIGAM , D. R. DATE OF HEARING 30/08/2018 DATE OF PRONOUNCEMENT 07 /0 9 /2018 I.T.A. NO.648/LKW/2017 ASSESSMENT YEAR:2014-15 2 OF SETTLEMENT COMMISSION ORDER PLACED AT PAGES 1,2 AND 3 OF THE PAPER BOOK. OUR SPECIFIC ATTENTION WAS INVITED TO PAGE 3 WHERE THE NAME OF THE ASSESSEE AT SR.NO. 5 WAS MENTIONED. FURTHER INVITI NG OUR ATTENTION TO DATES OF HEARING MENTIONED ON THE ORDER, LEARNED A. R. SU BMITTED THAT THESE DATES COINCIDE WITH THE DATE OF HEARING FIXED BY TH E ASSESSING OFFICER. TO A QUERY BY THE BENCH THAT IN THE PENALTY ORDER THE AS SESSEE HAD MENTIONED THAT THE DATE BEFORE THE SETTLEMENT COMMISSION WAS 22/06/2016 BUT THIS DATE DID NOT FIND MENTION ON THE SETTLEMENT COMMISS ION ORDER, LEARNED A. R. SUBMITTED THAT IN SETTLEMENT COMMISSION THEY ONL Y MENTION THE DATE ON WHICH THE EFFECTIVE HEARING IS TAKEN PLACE AND WHER E HEARING GETS ADJOURNED OR BENCH DOES NOT FUNCTION, THAT DATE IS NOT MENTIO NED. WITHOUT PREJUDICE, LEARNED A. R. SUBMITTED THAT THE ASSESSING OFFICER HAS COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT AND THEREFORE, IT PROVES THAT THE ABSENCE ON A PARTICULAR DATE FOR WHICH ASSESSING OFFICER HA D IMPOSED PENALTY WAS NOT INTENTIONAL AND LATER ON THE ASSESSEE HAS CO-OP ERATED WITH THE ASSESSMENT PROCEEDINGS. LEARNED A. R. FURTHER SUBM ITTED THAT THE ISSUE IS COVERED BY VARIOUS DECISIONS OF VARIOUS BENCHES OF THE TRIBUNAL AND WAS FURTHER COVERED BY THE ORDER OF HON'BLE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAW AN TRUST VS. ASSISTANT DIRECTOR OF INCOME TAX [2008] 115 TTJ 419 (DELHI) W HEREIN THE HON'BLE TRIBUNAL HAD HELD THAT WHERE THE ASSESSEE FURTHER C O-OPERATED IN THE ASSESSMENT PROCEEDINGS AND THE ASSESSMENT WAS COMPL ETED U/S 143(3) OF THE ACT, LEVY OF PENALTY U/S 271(1)(B) WAS NOT JUST IFIED. 4. LEARNED D. R., ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE DATE FOR HEARIN G WAS FIXED FOR 02/06/2016 BUT ASSESSEE COULD NOT ATTEND THE ASSESS MENT PROCEEDINGS AND I.T.A. NO.648/LKW/2017 ASSESSMENT YEAR:2014-15 3 SUBMITTED TO THE ASSESSING OFFICER THAT ASSESSEES ACCOUNTANT AND COUNSEL WERE BUSY IN PREPARATION OF THE CASES FIXED BEFORE SETTLEMENT COMMISSION SINCE MAY, 2016. THE COPY OF ORDER OF SETTLEMENT CO MMISSION ALSO INDICATES THAT VARIOUS HEARINGS TOOK PLACE ON 18/04/2016, 20/ 05/2016 AND 29/06/2016 AND FINALLY THE ORDER WAS PASSED ON 30/0 6/2016 AND THEREFORE, WE CAN WELL UNDERSTAND THAT THE ASSESSEE WAS BUSY I N PREPARATION OF ITS CASES BEFORE THE SETTLEMENT COMMISSION. MOREOVER, WE FIND THAT ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT WHIC H PROVES THAT SUBSEQUENTLY THE ASSESSEE CO-OPERATED WITH THE ASSE SSMENT PROCEEDINGS AND THEREFORE, PENALTY U/S 271(1)(B) IS NOT MAINTAI NABLE PARTICULARLY IN VIEW OF THE FACT THAT DELHI BENCH OF THE TRIBUNAL IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST VS. ASSISTANT DIRECTOR OF INCOME TAX [2008] 115 TTJ 419 (DELHI) HAS HELD THAT WHERE THE ASSESSMENT LATER ON IS COMPLETED U/S 143(3) THERE WAS NO REASON TO COME TO THE CONCLUSION THAT DEFAULT WAS WILLFUL. THE FINDINGS OF HON'BLE TRIBU NAL ARE REPRODUCED BELOW: 2.5 WE ALSO FIND THAT FINALLY THE ORDER WAS PASSED UNDER S. 143(3) AND NOT UNDER S. 144 OF THE ACT. THIS MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMM ITTED EARLIER WERE IGNORED BY THE AO. THEREFORE, IN SUCH CIRCUMSTANCES, THERE COULD HAVE BEEN NO REASON TO C OME TO THE CONCLUSION THAT THE DEFAULT WAS WILLFUL. 5.1 IN VIEW OF THE ABOVE, THE APPEAL FILED BY THE A SSESSEE STANDS ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 07/09/2018) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:07/09/2018 *SINGH I.T.A. NO.648/LKW/2017 ASSESSMENT YEAR:2014-15 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW