SUNVISION MANAGEMENT SERVICES P. LTD, MUMBAI V. ACIT 2(3), MUMBAI

ITA 6568/MUM/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6340 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 28-10-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 24-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ NISHAD
• Section: 142(1)

Judgement Text

1 ITA 6568/M/09, M/S SUNVISION MANAGEMENT SERVICES P . LTD. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H BEFORE SHRI P.M. JAGTAP, A.M. AND SMT. ASHA VIJAYAR AGHAVAN, JM ITA NO. 6568/MUM/09 ASSESSMENT YEAR 2006-07 M/S SUNVISION MANAGEMENT SERVICES (P) LTD., 5, BOMBAY MUTUAL ANNEXE, GUNBOW STREET, 17, RUSTAM SIDHWA MARG, FORT, MUMBAI 400 023. PAN AAICS 6270K VS. ACIT 2(3), AAYAKAR BHAWAN, M.K. ROAD, MUMBAI . 20 APPELLANT RESPONDENT APPELLANT BY NONE RESPONDENT BY SHRI MANOJ NISHAD ORDER PER P.M. JAGTAP, A.M. THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST TH E ORDER OF LD. CIT(A) - 6, MUMBAI DATED 15.10.09 WHEREBY HE CONFIRMED THE PENA LTY OF ` 10,000/- IMPOSED BY THE A.O. U/S 271(1)(B). 2. THE RELEVANT FACTS OF THE CASE GIVING RISE T O THIS APPEAL ARE THAT THE ASSESSEE IS A COMPANY WHICH FILED ITS RETURN OF INCOME FOR THE YE AR UNDER CONSIDERATION ON 30.11.06 DECLARING TOTAL INCOME OF ` 1,12,28,519/-. THE CASE OF THE ASSESSEE WAS SELEC TED FOR SCRUTINY AND NOTICE U/S 143(2) WAS ISSUED BY THE A. O. I.E. ITO-15(1)(1) ON 26.9.07. THE ASSESSEE ACKNOWLEDGED THE SAID NOTICE BY ITS LETTER DATED 23.10.07. THEREAFTER THE CASE OF THE ASSESSEE WAS TRANSFERRED TO ACIT-2(3), MUMBAI V IDE TRANSFER MEMO DTD. 23.5.08 WHO ISSUED NOTICES U/S 143(2) AND 142(1) ON 26.5.08 FIXING THE CASE OF THE ASSESSEE FOR 2 ITA 6568/M/09, M/S SUNVISION MANAGEMENT SERVICES P . LTD. HEARING 9.6.08. THE ASSESSEE, HOWEVER, FAILED TO C OMPLY WITH THE SAID NOTICE. THE SHOW CAUSE NOTICE U/S 271(1)(B) R.W.S. 274, THEREFORE, W AS ISSUED BY THE A.O. ON 13.6.08 FIXING THE HEARING ON 20.6.08. THE ASSESSEE AGAIN FAILED TO COMPLY WITH THE SAID NOTICE. IT WAS THEREFORE PRESUMED BY THE A.O. THAT THE ASSESSEE HA D DELIBERATELY FAILED TO COMPLY WITH THE NOTICES ISSUED U/S 143(2) AND 142(1) ON 26.5.08 AND HE IMPOSED A PENALTY OF ` 10,000/- U/S 271(1)(B) FOR THE SAID DEFAULT COMMITT ED BY THE ASSESSEE. 3. THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(B ) WAS CHALLENGED BY THE ASSESSEE COMPANY IN AN APPEAL FILED BEFORE THE LD. CIT(A) AN D IN THE WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT(A), IT WAS SUBMITTED ON BEHALF O F THE ASSESSEE COMPANY THAT SIMULTANEOUS NOTICES WERE RECEIVED BY IT FROM ITO - 2(3)(2) AND ACIT -2(3). IT WAS EXPLAINED THAT AS THE ASSESSEE WAS ALSO REQUIRED TO APPEAR BEFORE THE ITO -2(3)(2) ON THE SAME DAY IN COMPLIANCE WITH THE NOTICE ISSUED BY HI M, IT COULD NOT COMPLY WITH THE NOTICE ISSUED BY THE ACIT- 2(3) REQUIRING ITS APPEA RANCE ON THE SAME DATE. THE LD. CIT(A) DID NOT FIND THIS EXPLANATION OF THE ASSESSE E TO BE SATISFACTORY ON THE GROUND THAT THERE WAS NO JUSTIFICATION GIVEN BY THE ASSESSEE FO R ITS NON-COMPLIANCE TO THE NOTICE ISSUED BY THE A.O. U/S 271(1)(B) R.W.S. 274. HE, T HEREFORE, PROCEEDED TO CONFIRM THE PENALTY OF ` 10,000/- IMPOSED BY THE A.O. U/S 271(1)(B). AGGRI EVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US, NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE. HOWEVER, A WRITTEN SUBMISSION FILED BY THE ASSESSEE IS PLACED ON RECORD. THIS APPEAL OF THE ASSESSEE IS THEREFORE BEING DISPOSED OF AFTER T AKING INTO CONSIDERATION THE MATERIAL AVAILABLE ON RECORD INCLUDING THE WRITTEN SUBMISSIO N FILED BY THE ASSESSEE AND HEARING THE ARGUMENTS OF THE LD. D.R. IT IS OBSERVED THAT THE NOTICES ISSUED BY THE ACIT- 2(3) MUMBAI U/S 143(2) AND 142(1) ON 26.5.08 FIXING THE HEARING OF THE ASSESSEE ON 9.6.08 WERE NOT COMPLIED WITH BY THE ASSESSEE AND THIS NON -COMPLIANCE WAS EXPLAINED BY THE ASSESSEE BEFORE THE LD. CIT(A) ON THE GROUND THAT I T HAD RECEIVED A NOTICE ALSO FROM ITO - 2(3)(2) REQUIRING ITS APPEARANCE BEFORE HIM ON THE SAME DATE I.E. 9.6.08. THIS 3 ITA 6568/M/09, M/S SUNVISION MANAGEMENT SERVICES P . LTD. EXPLANATION OF THE ASSESSEE WAS NOT FOUND ACCEPTABL E BY THE LD. CIT(A) ON THE GROUND THAT NO JUSTIFICATION HAD BEEN GIVEN BY THE ASSESSEE IN ITS WRITTEN SUBMISSION AS TO WHY IT COULD NOT COMPLY WITH THE NOTICE ISSUED BY THE A.O. U/S 271(1)(B) R.W.S. 247. IN OUR OPINION, THIS REASON GIVEN BY THE LD. CIT(A) FOR NO T ACCEPTING THE EXPLANATION OF THE ASSESSEE AND THEREBY CONFIRMING THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(B) WAS NOT JUSTIFIED. THE SAID PENALTY WAS IMPOSED BY THE A.O . U/S 271(1)(B) FOR THE NON- COMPLIANCE OF NOTICES ISSUED BY HIM U/S 143(2)/142( 1) BY THE ASSESSEE AND WHAT OUGHT TO HAVE BEEN SEEN BY THE LD. CIT(A) WAS WHETHER THERE WAS A SUFFICIENT CAUSE FOR THE SAID NON-COMPLIANCE. IN OUR OPINION, WHEN ANOTHER A.O. I.E. ITO-2(3)(2) HAD ALSO REQUIRED THE ASSESSEE TO APPEAR BEFORE HIM ON THE SAME DAY I .E. 9.6.08, THIS BY ITSELF WAS A SUFFICIENT CAUSE FOR THE FAILURE OF THE ASSESSEE TO APPEAR BEFORE THE ACIT 2(3) ON THE SAME DAY. THE DEFAULT ON THE PART OF THE ASSESSEE T O COMPLY WITH THE NOTICE ISSUED BY ACIT- 2(3) U/S 143(2)/142(1) ON 26.5.08 FIXING THE HEARING ON 9.6.08 THUS WAS DUE TO SUFFICIENT CAUSE AND THE LD. CIT(A), IN OUR OPINION , WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY IMPOSED BY THE A.O. U/S 271(1)(B). WE, THE REFORE, CANCEL THE SAID PENALTY IMPOSED BY THE A.O. AND CONFIRMED BY THE LD. CIT(A) AND ALLOW THIS APPEAL OF THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED ON 26 TH NOVEMBER, 2010. SD/- SD/- (ASHA VIJAYARAGHAVAN) ( P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 26 TH NOVEMBER , 2010. RK 4 ITA 6568/M/09, M/S SUNVISION MANAGEMENT SERVICES P . LTD. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 6 - MUMBAI 4. THE CIT- 2 MUMBAI 5. THE DR BENCH, D 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 5 ITA 6568/M/09, M/S SUNVISION MANAGEMENT SERVICES P . LTD. DATE INITIALS 1. DRAFT DICTATED 29.10.10, 4.11.10 SR.P.S./P.S. 2. DRAFT PLACED BEFORE AUTHOR 3.11.10, 8.11.10 SR.P.S./P.S. 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER. - J.M./A.M. 4.DRAFT DISCUSSED/ APPROVED BY SECOND MEMBER. J.M./A.M. 5. APPROVED DRAFT COMES TO THE SR.P.S./P.S. SR.P.S./P.S. 6. KEPT FOR PRONOUNCEMENT ON SR.P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S. 8. DATE OF WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER.