M/s Shri Jyothi Medical Hall, Hyderabad V. ITO, Hyderabad

ITA 663/HYD/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 6189 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 19-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V N CHARYA
• Assessee Lawyers: TEJ PRAKASH TOSHNIWAL
• Section: 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI AKBER BASHA, ACCOUNTANT MEMBER ITA NO.663/HYD/2009 : ASSESSMENT YEAR 2005-06 M/S. SHRI JYOTHI MEDICAL HALL, HYDERABAD. ( PAN AAWES 0494 G ) V/S. INCOME-TAX OFFICER, WARD-5(2), HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI TEJ PRAKASH TOSHNIWAL RESPONDENT BY : SHRI K.V.N.CHARYA O R D E R PER G.C.GUPTA, VICE PRESIDENT: THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-0 6 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF IN COME-TAX (APPEALS). 2. THE ONLY ISSUE IN THIS APPEAL IS REGARDING VALIDI TY OF PENALTY LEVIED UNDER S.271(1)(B) OF THE ACT AT RS.10,000. 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE NOTICE UNDER S.143(2) OF THE ACT WAS ISSUED ON 6.8.2007 AND TH E SAME WAS SERVED ON THE ASSESSEE ON 8.8.2007 AND THE CASE OF THE CASE WAS FIXED FOR THE SAME DATE, I.E. 8.8.2007 AND THEREFORE, THE ASSESSEE COULD NOT COMPLY WITH THE SAID NOTICE. REGARDING THE OTHER NOTI CE ISSUED UNDER S.142(1) AND 143(2) REQUIRING THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNT, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE B OOKS OF ACCOUNT ITA NO.663/HYD/09 M/S. SHRI JYOTHI MEDICAL HALL, HYDERABAD. 2 ON THE RELEVANT DATE, WERE LYING WITH THE DEPARTMEN T AND THEY ARE STILL LYING WITH THE DEPARTMENT, AND THEREFORE, VIOLATION IN COMPLYING WITH THE SAID NOTICE IS NOT INTENTIONAL ON THE PART OF THE ASSESSEE . THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, REL IED ON THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE NOTICE DATED 6.8.2007 ISSUED UNDER S.143(2) WAS SERVED O N THE ASSESSEE ON 8.8.2007 AND THE CASE WAS FIXED FOR HEARING FOR TH AT VERY DATE, VIZ. 8.8.2007, AND THEREFORE, THERE WAS SUFFICIENT CAUSE FOR NOT COMPLYING WITH THE SAID NOTICE. REGARDING THE OTHER NOTICE ISSUED UNDER S.142(1) READ WITH S.143(2) OF THE ACT, TO PRODUCE BOOKS OF A CCOUNT AND OTHER INFORMATION ON 21.9.2007, WE FIND THAT THE REVENUE COULD NOT CONTROVERT THE SUBMISSION OF THE ASSESSEE THAT THE BOOKS OF ACCOUNT OF THE ASSESSEE WERE AND ARE STILL LYING WITH THE INCOME-TAX DEPAR TMENT. THEREFORE, THERE WAS SUFFICIENT CAUSE FOR NON-COMPLIANCE WITH THIS NOT ICE ALSO. IN THESE FACTS, WE HOLD THAT IT IS NOT A FIT CASE FOR THE LE VY OF PENALTY UNDER S.271(1)(B) OF THE ACT AND THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 12.11.2010 SD/- SD/- (AKBER BASHA) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 12TH NOVEMBER, 2010 ITA NO.663/HYD/09 M/S. SHRI JYOTHI MEDICAL HALL, HYDERABAD. 3 COPY FORWARDED TO: 1. M/S. SHRI JYOTHI MEDICAL HALL, C/O. SHRI TEJ PRAKASH TOSHNIWAL, ADVOCATE, 4-1-6/B/4, RAMKOTE, HYDERABAD 500 005. 2. INCOME-TAX OFFICER, WARD-5(2), HYDERABAD 3. COMMISSIONER OF INCOME-TAX (APPEALS)-V, HYDERABAD. 4. COMMISSIONER OF INCOME-TAX -IV, HYDERABAD. . 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD B.V.S .