ABDUL SAMI, Jaipur V. ITO, Jaipur

ITA 663/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5027 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 15-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DR DHK
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 142(1); 147

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPUN] YS[KK LNL; DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 663/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 SHRI ABDUL SAMI H.NO. 1842, NAHERON KI NADI CHOKDI RAMCHANDRA JI KI RAMGANJ BAZAR, JAIPUR CUKE VS. THE ITO WARD- 7(3) JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ANPPS 5802 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY: SHRI SHRAWAN KUMAR GUPTA, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY :SHRI R.A. VERMA, ADDL CIT-. DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/10/2016 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 19 /10/2016 VKNS'K@ ORDER PER BHAGCHAND, AM THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD. CIT(A)-3, JAIPUR DATED 29-04-2016 FOR THE ASSESSM ENT YEAR 2008-09 RAISING THEREIN FOLLOWING GROUNDS:- 1.1 THE IMPUGNED PENALTY ORDER U/S 271(1)(B) DATE D 21- 11-2013 IS BAD IN LAW AND ON FACTS OF THE CASE FOR WANT OF JURISDICTION AND VARIOUS OTHER REASONS AND HENCE TH E SAME MAY KINDLY BE QUASHED. ITA NO. 663/JP/2016 SHRI ABDUL SAMI VS. ITO, 7 (3), JAIPUR . 2 1.2 THE AO FURTHER ERRED IN LAW AS WELL AS ON THE F ACTS OF THE CASE IN PASSING EX-PARTIE ORDER U/S 271(1)(B) W ITHOUT AFFORDING ADEQUATE AND REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE. THE IMPUGNED ORDER HAVING BE EN FRAMED IN GROSS BREACH OF NATURAL JUSTICE WHICH WAS TOTALLY CONTRARY TO THE PROVISIONS OF LAW AND FACTS OF THE CASE, HENCE THE ORDER OF THE AO MAY KINDLY BE QUASHED. 2. THE LD. CIT(A) HAS GROSSLY ERRED IN LAW AS WELL AS ON THE FACTS OF THE CASE IN CONFIRMING THE PENALTY OF RS. 30,000/- IMPOSED U/S 271(1)(B) BY THE AO. HENCE, THE PENALTY SO IMPOSED BY THE AO AND CONFIRMED BY THE LD. CIT(A) I S BEING TOTALLY CONTRARY TO THE PROVISIONS OF LAW AD FACTS ON THE RECORD AND HENCE THE ADDITION MAY KINDLY BE QUASHED IN FULL. 2.1 THE GROUND NO. 1 AND 1.1 OF THE ASSESSEE ARE GE NERAL IN NATURE WHICH NEEDS NO ADJUDICATION. HENCE, THE SAME ARE DI SMISSED. 3.1 AS REGARDS GROUND NO. 2 OF THE ASSESSEE, BRIEF FACTS AS EMERGES FROM THE ORDER OF THE LD. CIT(A) IS REPRODUCED AS U NDER:- 4.1 ASSESSMENT IN THIS CASE WAS COMPLETED U/S 147/144 OF THE ACT, 1961 ON 22-07-2013 ON A TOTAL I NCOME OF RS. 37,29L920/-. ALONG WITH DEMAND NOTICE IN ORDER TO PROVIDING OPPORTUNITY FOR FILING REPLY BY 05-03-201 3 SHOW CAUSE NOTICE U/S 271(1)(B) WAS SENT WHICH WAS REFUS ED TO RECEIVE THE ASSESSEE. THE POSTMAN HAS RETURNED THE REGISTERED DOCUMENTS WITH THE REMARK REFUSED. FINALLY, THE INSPECTOR OF THIS WAS ALSO DEPUTED TO GET SERVED THE ASSESSME NT ORDER AND PENALTY SHOW CAUSE NOTICES APPENDED THEREWITH. THE INSPECTOR HAS SUCCEEDED TO SERVE UPON THE ASSESSEE HIMSELF ON 30-10-2013 BUT TILL DATE NO REPLY IS RECEIVED AG AINST THE ISSUED SHOW CAUSE NOTICES. FROM THE ABOVE IT IS CLEAR THAT NEITHER THE ASSESSE E WANT TO COOPERATE WITH THE DEPARTMENT OR NOT HAVE A VAILED THE OPPORTUNITY OF BEING HEARD. THEREFORE, A PENALT Y OF RS. 30,000/- FOR THREE DEFAULTS ON ACCOUNT OF NON-COMP LIANCE OF ITA NO. 663/JP/2016 SHRI ABDUL SAMI VS. ITO, 7 (3), JAIPUR . 3 NOTICE U/S 271(1)(B) OF I.T. ACT, 1961 ON 14-05-201 3, 14-06- 2013 AND 05-07-2013 HAS IMPOSED UNDER SECTION 271(1 )(B) OF I.T. ACT, 1961 AFTER GETTING APPROVAL OF ADDL. C IT, RANGE- 7, JAIPUR. IN REMAND REPORT SUBMITTED BY THE AO HAS SUBMITTED THAT THE ORDER U/S 147/144 ALONGWITH DEMAND NOTICE AND PENALTY NOTICES U/S 271(1)(B) AND 271(1)(C) IS DULY SERVED UPON THE ASSESSEE BY THE INSPECTOR. THE SHOW CAUSE NOTICES U/S 271(1)(B) WERE ALSO PROPERLY SERVED ON THE ASSE SSEE BEFORE PASSING THE PENALTY ORDER U/S 271(1)(B) BUT NO COMPLIANCE HAS BEE MADE BY THE ASSESSEE IN ATTENDIN G THE OFFICE OR FILING ANY WRITTEN SUBMISSION IN THIS REG ARD. 4.2 . 4.3 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF L D. AR OF THE APPELLANT REGARDING CHANGE OF ADDRESS OF THE ASSESSEE AND IT IS FOUND THAT THE ASSESSEE HAS NEITHER CHANG ED HIS ADDRESS IN PAN CARD NOR INTIMATED THE DEPARTMENT FO R CHANGE OF ADDRESS ACCORDING TO THE AO. IN QUANTUM A PPEAL FOR THIS YEAR REGARDING NON-SERVICE OF NOTICES DUE TO CHANGE OF ADDRESS, IT IS HELD BY THE CIT (A)-III, JAIPUR I N HIS ORDER DATED 24-12-2014 FOR THIS YEAR THAT IN SOME OF THE NOTICES WHILE SERVING THE SAME THE NOTICE SERVER ALSO OBTAI NED THE MOBILE NUMBER OF THE PERSON SERVED UPON. IN THESE CIRCUMSTANCES WHEN A SERVICE OF NOTICE IS MADE BY T HE NOTICE SERVER IT IS NOT EXPECTED THAT THE NOTICE SERVER WI LL ASK FOR THE ID PROOF OF THE RECEIVER. AS REGARDS VARIOUS CASE L AWS RELIED UPON BY THE APPELLANT, THE SAME ARE FOUND TO BE OF DISTINGUISHABLE NATURE WITH THE FACTS OF THE APPELL ANTS CASE INASMUCH AS IN THE APPELLANT CASE VALIDITY OF EARLI ER ADDRESS IS NOT DISPUTED. KEEPING IN VIEW THESE FACTS PRIMA FACIE THERE WAS NO IRREGULARITY OR ILLEGALITY IN THE PENALTY LE VIED U/S 271(1)(B). THE ACTION OF THE AO IS CONFIRMED. THE AO WAS CORRECT IN IMPOSITION OF THE PENALTY OF RS. 30,000/- FOR 3 DEFAULTS AS THE ASSESSEE HAS NOT COOPERATED WITH THE DEPARTMENT IN FINALIZING THE PROCEEDINGS K EEPING IN ITA NO. 663/JP/2016 SHRI ABDUL SAMI VS. ITO, 7 (3), JAIPUR . 4 VIEW THE FACT THAT SHOW CAUSE NOTICES U/S 271(1)(B ) WERE PROPERLY SERVED UPON THE ASSESSEE BEFORE PASSING TH E PENALTY ORDER. THE GROUND IS DISMISSED. 3.2 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE PRAYED FOR DELETION OF PENALTY OF RS. 30,000/- CONFIRMED BY TH E LD. CIT(A) U/S 271(1)(B) OF THE ACT AND TO THIS EFFECT THE ASSESSE E HAS FILED THE WRITTEN SUBMISSION WHICH HAS BEEN TAKEN INTO CONSIDERATION FOR ADJUDICATION OF THE APPEAL OF THE ASSESSEE. 3.3 THE LD. DR RELIED ON THE ORDERS OF THE AUTHORIT IES BELOW. 3.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE PERTINENT ISSUE IN THIS AP PEAL IS THAT THE ASSESSEE HAS NOT RESPONDED TO THE NOTICES SENT BY THE AO TO THE ADDRESS OF THE ASSESSEE I.E. SHRI ABDUL SAMI S/O SHRI ABDUL RAHIM, 67, WARD NO.8, HANDIPURA, AMER, JAIPUR FOR WHICH THE AO VIDE HIS ORDER DATED 27-11- 2013 IMPOSED PENALTY OF RS. 30,000/- AS PER DETAILS MENTIONED AS UNDER:- S.N. NOTICES DATE OF ISSUANCE DATE OF HEARING REMARKS AMOUNT OF PENALTY (RS.) 1. NOTICE U/S 142(1) 29-04-2013 14-05-2013 NON COMP LIED RS. 10,000/- 2. NOTICE U/S 142(1) 28-05-2013 14-06-2013 NON COMP LIED RS. 10,000/- 3. NOTICE U/S 142(1) 25-06-2013 05-07-2013 NON COMP LIED RS. 10,000/- TOTAL RS. 30,000/- ITA NO. 663/JP/2016 SHRI ABDUL SAMI VS. ITO, 7 (3), JAIPUR . 5 THE SAME HAS BEEN CONFIRMED BY THE LD. CIT(A). IT E MERGES FROM THE RECORDS THAT THE ASSESSEE HAD BEEN LIVING AT 1842, MEHRON KI NADI, OPP. MEHRON KA BAGH, RAMGANJ BAZAR, JAIPUR SINCE 2011. T HE ASSESSEE HAS FILED HIS AFFIDAVIT NOTORIZED BY THE NOTARY DATED 8-11-2014 BEFORE THE CIT-III , JAIPUR. THE ASSESSEE HAS ALSO FILED THE A FFIDAVIT OF HIS MOTHER SMT. REHANI BEGUM W/O LATE SHRI ABDUL RAHIM WHO CON FIRMED THAT SHE HAD BEEN LIVING WITH FAMILY AT 1842, MEHRON KI NADI , OPP. MEHRON KA BAGH, RAMGANJ BAZAR, JAIPUR SINCE 2011 AFTER THE DE ATH OF HER HUSBAND. IT IS ALSO NOTICED FROM THE ORDER DATED 13-03-2013 OF ITO WARD- 7(3), JAIPUR WHO HAD SENT THE REASONS TO BELIEF FOR REOPE NING U/S 147 OF THE I.T. ACT, 1961 AT THE ADDRESS OF THE ASSESSEE I.E. SHRI ABDUL SAMI, H.NO. 1842, NAHERON KI NADI, CHOKDI RAMCHANDRA JI KI, RAM GANJ BAZAR, JAIPUR. HENCE TAKING INTO CONSIDERATION ALL THE FACTS AND T HE RECORDS AVAILABLE BEFORE THE BENCH, IT IS OBSERVED THAT THE NOTICES WERE NOT SERVED UPON THE ASSESSEE AT HIS CORRECT RESIDENTIAL ADDRESS AND IN SUCH A SITUATION THE PENALTY CONFIRMED BY THE LD. CIT(A) AMOUNTING TO RS .30,000/- U/S 271(1)(B) IS DIRECTED TO BE DELETED. THUS THE GROUN D NO. 2 OF THE ASSESSEE IS ALLOWED. ITA NO. 663/JP/2016 SHRI ABDUL SAMI VS. ITO, 7 (3), JAIPUR . 6 4.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 /10/2016 SD/- HKKXPUN ( BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 19 /10/ 2016 *MISHRA VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI ABDUL SAMI, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 7 (3), JAIPUR 3. VK;DJ VK;QDRVIHY@ CIT(A). 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 663/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ @ ASSISTANT. REGISTRAR