Girish Bhagwat Chaudhari, Bhusawal V. Income-tax Officer,

ITA 67/PUN/2015

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 7446 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 29-12-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 16-01-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUDHANSHU SHEKHAR
• Keywords: Search and seizure; Reasonable cause
• Section: 143(3); 142(1); 133A; 153A; 131; 27; 132; 139

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , ! ' , $ % BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NOS.67-73/PUN/2015 ' ' / ASSESSMENT YEARS : 2006-07 TO 2012-13 SHRI GIRISH BHAGWAT CHAUDHARI 11, SWED BINDU, SHATI NAGAR, YAWAL ROAD, BHUSAWAL 425201. PAN NO.AAQPC2000G. . / APPELLANT V/S INCOME TAX OFFICER, CENTRAL 1, NASHIK. . / RESPONDENT / APPELLANT BY : SHRI NIKHIL PATHAK / RESPONDENT BY : SHRI SUDHANSHU SHEKHAR ( / ORDER PER ANIL CHATURVEDI, AM : THESE ARE ASSESSEES APPEALS FOR DIFFERENT ASSESSMENT YEARS I.E., 2006-07 TO 2012-13. THESE APPEALS ARISE OUT OF A CONSOLIDATED ORDER OF LD. CIT(A) I, NASHIK DATED 12.11.2014. / DATE OF HEARING :29.12.2016 / DATE OF PRONOUNCEMENT: 05.01.2017 2 ITA NOS.67 TO 73/PUN/2015 AY.NOS.2006-07 TO2012-13 2. BEFORE US, AT THE OUTSET, LD.A.R. SUBMITTED THAT THOUGH THE APPEALS OF THE ASSESSEE ARE FOR DIFFERENT ASSESSMENT YEA RS BUT THE ISSUE INVOLVED IN ALL THE APPEALS IS COMMON NAMELY, THE LEVY OF PENALTY U/S 271(1)(B) OF THE I.T. ACT. HE THEREFORE SUB MITTED THAT THE SUBMISSIONS MADE BY HIM WHILE ARGUING APPEAL FOR ONE YEAR WOULD BE EQUALLY APPLICABLE TO OTHER YEARS AND THER EFORE ALL THE APPEALS CAN BE HEARD TOGETHER. LD. D.R. DID NOT OBJE CT TO THE AFORESAID SUBMISSION OF THE LD.A.R. WE THEREFORE FOR THE SAK E OF CONVENIENCE PROCEED TO DISPOSE OF ALL THE APPEALS BY A CONSOLIDATED ORDER BUT HOWEVER PROCEED WITH NARRATING T HE FACTS IN ITA NO.67/PUN/2015 FOR ASSESSMENT YEAR 2006-07. 3. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON RECORD ARE AS UNDER :- 3.1 ASSESSEE IS AN INDIVIDUAL WHO IS STATED TO BE DEALER OF MAN TRUCK AND BELONGS TO CHAUDHARI GROUP BHUSAWAL. ASSESSE E FILED HIS RETURN OF INCOME ON 16.01.2008 DECLARING TAXABLE INCOME OF RS.1,66,472/-. A SEARCH AND SEIZURE ACTION U/S 132 OF T HE ACT WAS CONDUCTED IN CHAUDHARI GROUP OF CASES, BHUSAWAL ON 04.10.2011. THE RESIDENTIAL PREMISES OF THE ASSESSEE WA S SEARCHED U/S 132 AND SURVEY ACTION U/S 133A WAS CARR IED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE. NOTICE U/S 153A OF THE ACT WAS ISSUED ON 06.07.2012 AND SERVED ON THE ASSESS EE AND IN RESPONSE TO WHICH, ASSESSEE VIDE HIS SUBMISSIONS DT.25.10. 2013 SUBMITTED THAT THE RETURN FILED U/S 139 MAY BE TREATED AS RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S 153A OF THE ACT. TH EREAFTER NOTICES U/S 142(1) DT.19.09.2013 ALONG WITH QUESTIONNAIRE WA S ISSUED AND SERVED ON THE ASSESSEE. AO NOTED THAT THE RE WAS NO 3 ITA NOS.67 TO 73/PUN/2015 AY.NOS.2006-07 TO2012-13 COMPLIANCE BY ASSESSEE. THEREAFTER FURTHER NOTICE U/S 14 2(1) WAS ISSUED ON 13.12.2013 WHICH ALSO REMAINED UNCOMPLIED. THEREAFTER THE ASSESSMENT WAS FRAMED U/S 143(3) R.W.S. 1 53A VIDE ORDER DT.26.03.2014 AND THE TOTAL INCOME WAS DETER MINED AT RS.11,66,470/-. FOR NON-COMPLIANCE OF NOTICES U/S 142(1) O N 09.05.2013, 19.09.2013 AND 13.12.2013 PENALTY PROCEEDINGS WERE INITIATED U/S 271(1)(B) BY ISSUING NOTICE DATED 31.12.201 3. AO THEREAFTER PASSED ORDER U/S 271(1)(B) ON 26.03.2014 AND LEVIED PENALTY OF RS.10,000/-. SIMILAR PENALTIES U/S 271(1)(B) WAS ALSO LEVIED BY AO FOR A.YS. 2007-08 TO 2012-13. AGGR IEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATTER BEFORE LD. CIT(A), WHO VIDE A CONSOLIDATED ORDER DT.12.11.2014 FOR A.YS. 2006-0 7 TO 2012-13 IN APPEAL NO.NSK/CIT(A)-I/833, 832,831, 830, 834 T O 836/2013-14 DISMISSED THE APPEAL OF THE ASSESSEE BY HO LDING AS UNDER: 6. I HAVE CAREFULLY GONE THROUGH THE PENALTY ORDE RS, ASSESSMENT ORDERS AND THE MATERIAL AVAILABLE ON REC ORD. I FIND THAT A SEARCH U/S 132 OF THE IT. ACT, 1961 WAS CARRIED OUT IN APPELLANT'S CASE ON 04/10/2011. PURSUANT TO CENTRALIZATION OF THE CASES, ITO(CENTRAL)-I, NASHIK HAD ISSUED A NOTICE EACH U/S 153A OF THE I.T. ACT, 1961 ON 06/07/2012 REQUIRING THE APPELLANT TO FURNISH THE R ETURNS WITHIN 30 DAYS OF THE SERVICE OF THE NOTICES FOR A. YS. 2006- 07 TO 2011-12 AND NOTICE U/S 142(1) ON 07/11/2012 REQUIRING THE APPELLANT TO FURNISH THE RETURN OF IN COME WITHIN 30 DAYS OF THE SERVICE OF THE NOTICE FOR A.Y . 2012- 13. SUBSEQUENTLY, THE AO ISSUED NOTICE U/S 142(1) O N 09/05/2013 FIXING THE HEARING BEFORE HIM ON 20/05/2013. THE AO HAD ALSO ENCLOSED AN 'ANNEXURE' TO THE SAID NOTICE ISSUED U/S 142(1) OF THE I.T. ACT, 1961 ASKING FOR CERTAIN DETAILS/INFORMATION/DOCUMENTS. A O HAD ASKED THE APPELLANT TO FURNISH THE SAME AT THE TIME OF HEARING ON 20.05.2013. THERE WAS HOWEVER, NO COMPLIANCE ON THE PART OF THE APPELLANT. THE AO, THEREAFTER, ISSUED ANOTHER NOTICE U/S 142(1) DATED 19.09.2013 FIXING THE ON 03/10/2013. ALONG WITH TH IS NOTICE THE AO HAD ENCLOSED A DETAILED QUESTIONNAIRE NO.NSK/ITO(C)-I/QUESTIONNAIRE/2013-14/568 DATED 19/09/2013. THIS WAS RECEIVED BY THE APPELLANT ON 23/09/2013. IT APPEARS FROM THE RECORD THAT THE APP ELLANT DID NOT COMPLY WITH THE SAID QUESTIONNAIRE. IT IS SEEN THAT THE APPELLANT HAD ALSO NOT FURNISHED THE RETURN OF INCOME 4 ITA NOS.67 TO 73/PUN/2015 AY.NOS.2006-07 TO2012-13 IN RESPONSE TO NOTICE U/S 153A DATED 06/07/2012 WHEREIN THE APPELLANT WAS REQUIRED TO FURNISH THE RETURN OF INCOME BY 06/08/2012. IT IS ALSO REVEALED FROM THE RECORDS THAT THE AO HAD GIVEN A FINAL OPPORTUNITY TO THE APPELLANT VIDE LETTER DATED 17/10/2013 ASKING FOR THE RETURN OF INCOME WITHIN 7 DAYS OF THE RECEIPT OF THE SAID LETTER. THE APPELLA NT HAD NOT FILED THE RETURN OF INCOME IN RESPONSE TO N OTICE U/S 153A TILL 17/10/2013 I.E. DESPITE A GAP OF MORE THAN 15 MONTHS FROM THE DATE OF ISSUE OF THE FIRST LETTER ON 06/07/2012. THE APPELLANT VIDE LETTER DAT ED NIL RECEIVED ON 25/10/2013 IN THE OFFICE OF ITO(CENTRAL)-I, NASHIK REQUESTED THE AO TO TREAT IT S RETURN OF INCOME FILED U/S 139 AS RETURN OF INCOME IN RESPONSE TO NOTICE U/S 153A OF THE ACT. THE AO, THEREAFTER, ISSUED A LETTER DATED 19/11/2013 ENCLOSING THEREWITH A COPY OF THE QUESTIONNAIRE DAT ED 19/09/2013 FIXING THE CASE FOR 29/11/2013. THE AO ISSUED ANOTHER NOTICE U/S 142(1) ON 13/12/2013 FIXING THE CASE FOR 26/12/2013. THE APPELLANT, HOWEVER, DID NOT COMPLY WITH THE SAID NOTICES. THEREAFTER, THE AO ISSUED ANOTHER NOTICE U/S 142(1) ON 20/12/2013 FIXING THE HEARING ON 26-27/12/2013. THE APPELLANT ONCE AGAIN DID NOT COMPLY WITH THE SA ID NOTICES. FINALLY, THE AO ISSUED SHOW CAUSE NOTICE U /S 274 R.W.S. 271(1)(B)ON 31/12/2013 REQUIRING THE APPELLANT TO FURNISH HIS SAY AS TO WHY PENALTY U/S 271(1)(B) OF THE I.T. ACT, 1961 SHOULD NOT BE LEVI ED. IT IS ALSO SEEN THAT THE AO HAD ISSUED SUMMONS U/S 131 ON 20.12.2013 TO APPELLANTS C.A. VIZ. SHRI JAY A GOVIND PALAI REQUIRING HIS ATTENDANCE ON 08.01.2014 IN HIS OFFICE. IN VIEW OF THE FACTS MENTIONED ABOVE IT IS CLEAR THAT THAT THE APPELLANT HAD NOT COMPLIED WITH THE VARIOUS STATUTORY NOTICES INCLUD ING THE NOTICE U/S 142(1) ISSUED ON 13/12/2013 REQUIRIN G THE APPELLANT TO FURNISH HIS SUBMISSION ON OR BEFOR E 26/12/2013. I HAVE CONSIDERED THE APPELLANT'S SUBMISSION FILED BEFORE ME ON 05/11/2014. I FIND FROM HIS SUBMISSION THAT HE HAD QUESTIONED THE CENTRALIZATION OF THE CASES U/S 127 WITH THE AO. NO N- COMPLIANCE OF THE VARIOUS NOTICES ON THE PART OF TH E APPELLANT ON THIS VERY REASON I.E. CENTRALIZATION O F THE CASE WITH THE AO IS WITHOUT ANY BASIS AND HENCE NOT ACCEPTABLE. THE APPELLANT WAS PROVIDED SUFFICIENT OPPORTUNITIES BY THE AO WHO HAD ALSO GIVEN HIM A DETAILED QUESTIONNAIRE ON THE BASIS OF VARIOUS DOCUMENTS FOUND AND SEIZED DURING THE COURSE OF SEARCH PROCEEDINGS. IN THE FACTS AND THE CIRCUMSTANCES MENTIONED ABOVE, I AM OF THE OPINION THAT THE APPELLANT DID NOT COMPLY WITH THE NOTICES U/S 142(1) WITHOUT ANY REASONABLE CAUSE. THE APPELLANT' S SUBMISSION THAT THE FINAL ASSESSMENT WAS MADE U/S 143(3) R. W.S. 153A OF THE 1.T. ACT. 1961 WILL NOT ABSOLVE THE APPELLANT OF HIS DELIBERATE FAULT FOR NOT COMPLYING WITH THE VARIOUS STATUTORY NOTICES ISSUED BY THE AO U/S 142(1) OF THE ACT. ALL THESE NOTICES REMAINED UN-COMPLIED WITH. IN MY OPINION, THE AO HAS GIVEN MORE THAN REASONABLE OPPORTUNITY TO THE APPELLANT TO FILE HIS SUBMISSION. HOWEVER, THE APPELLANT WITHOUT ANY REASONABLE CAUSE, DID NOT COMPLY WITH THE NOTICES. THE AO, THEREFORE, WAS JUSTIFIED IN LEVYING PENALTIES OF RS.10,000/- EACH FOR 5 ITA NOS.67 TO 73/PUN/2015 AY.NOS.2006-07 TO2012-13 A.YS.2006-07 TO 2012-13 U/S 271(1)(B) OF THE ACT. THE SAME ARE CONFIRMED. 4. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS. 1. THE ORDER PASSED IS ILLEGAL, INVALID AND BAD-IN -LAW. 2. THE ACT OF LEARNED AO LEVYING THE PENALTY U/S 27 1(1)(B) OF INCOME TAX ACT, 1961 IS UNJUSTIFIED. 3. THAT THE FAILURE TO COMPLIANCES WAS NOT INTENTIO NAL AND NOT MERE EXCUSES. 5. BEFORE US LD.A.R. REITERATED THE SUBMISSIONS MADE BEFORE LD. CIT(A) AND FURTHER SUBMITTED THAT IDENTICAL ISSUE OF LEVY O F PENALTY U/S 271(1)(B) OF THE ACT FOR NON-COMPLIANCE OF NOTICES U/S 142(1) FOR A.YS. 2006-07 TO 2012-13 AROSE BEFORE THE TRIBUNAL IN THE CASE OF YASHODHAN NAMDEO CHAUDHARI IN IT A NOS.86 TO 92/PN/2015 AND THE TRIBUNAL VIDE ORDER DATE D 08.07.2016 CONFIRMED THE PENALTY FOR ONE ASSESSMENT YEAR AND DELETED THE PENALTY FOR OTHER ASSESSMENT YEARS WERE D ELETED. HE THEREFORE SUBMITTED THAT THE ISSUE INVOLVED IN THE PRESEN T CASE IS IDENTICAL TO THAT OF THE CASE OF YASHODHAN NAMDEO CHAUDH ARI AND THEREFORE THE ISSUE BE DECIDED AS IN THE CASE OF YAS HODHAN NAMDEO CHAUDHARI. HE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID DECISION. 6. LD. D.R. ON THE OTHER HAND, SUBMITTED THAT SINCE EACH YEAR IS AN INDEPENDENT ASSESSMENT YEAR AND THE PENALTY HA S BEEN LEVIED FOR EACH ASSESSMENT YEAR, THE LD. CIT(A) HAS RIGHTL Y CONFIRMED THE ORDER OF AO. HE THUS SUPPORTED THE ORDER OF LD. CIT(A). 6 ITA NOS.67 TO 73/PUN/2015 AY.NOS.2006-07 TO2012-13 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS LEVY OF PENALTY U/S 271(1)(B) ON ACCOUNT OF NON-COMPLIANCE OF NOTICE S ISSUED U/S 142(1) OF THE ACT FOR A.YS. 2006-07 TO 2012-2013. 8. IT IS AN UNDISPUTED FACT THAT PENALTY U/S 271(1)(B) HAS BEEN LEVIED FOR NON-COMPLIANCE OF THE NOTICE U/S 142(1) ON 20.05.2013, 03.10.2013 AND 26.12.2013 IN ALL THE SIX ASSESSMENT YEARS. WE FIND THAT ON IDENTICAL FACTS IN T HE CASE OF YASHODHAN NAMDEO CHAUDHARI, THE CO-ORDINATE BENCH OF THE TRIBUNAL HAD CONFIRMED THE LEVY OF PENALTY FOR ONE YEAR AND DELETED THE PENALTY FOR OTHER YEARS. THE RELEVANT OBSER VATION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL READS AS UNDER : 9. ON THE PERUSAL OF RECORD AND THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THE FACTUAL ASPECTS OF T HE CASE ARE THAT AFTER SEARCH AND SEIZURE OPERATION CONDUCT ED ON THE CHAUDHARI GROUP OF CASES, THE RESIDENTIAL PREMI SES OF THE ASSESSEE WERE SIMULTANEOUSLY SEARCHED. THEREAFT ER, NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSE E AND THE ASSESSEE IN RETURN SUBMITTED THAT THE ORIGI NAL RETURN OF INCOME FILED UNDER SECTION 139 BE TREATED AS FILED IN RESPONSE TO THE SAID NOTICE. THEREAFTER, N OTICE UNDER SECTION 142(1) WAS ISSUED ON 09.05.2013, 19.09.2013 AND ANOTHER NOTICE WAS ISSUED ON 13.12.2013. SINCE THE ASSESSEE FAILED TO COMPLY WIT H THE SAID NOTICE, SHOW-CAUSE WAS ISSUED TO THE ASSESSEE AS TO WHY PENALTY UNDER SECTION 271(1)(B) OF THE ACT SHOU LD NOT BE LEVIED. UNDER THE PROVISIONS OF THE SAID SECTION WHERE A PERSON HAS DEFAULTED TO COMPLY WITH THE NOTICE ISSU ED UNDER SECTION 142(1) AND/OR FAILED TO FURNISH THE INFORMATION/DOCUMENTS SOUGHT FOR, THEN THE ASSESSIN G OFFICER MAY DIRECT THAT SUCH A PERSON TO PAY BY WAY OF PENALTY, A SUM OF RS.10,000/- EACH FOR SUCH FAILURE . THE SAID PENALTY IS PAYABLE IN ADDITION TO TAX, IF ANY, PAYABLE BY THE SAID PERSON. IN THE FACTS OF THE PRESENT CAS E, THE 4 ITA NOS.86 TO 92/PN/2015 ASSESSEE INITIALLY HAD DEFAULTED AND HAD NOT COMPLIED WITH THE NOTICES UND ER SECTION 142(1) OF THE ACT. HOWEVER, NO DOUBT COMPLE TE INFORMATION WAS FILED BY THE ASSESSEE BUT THE SAME DOES NOT ABSOLVE THE ASSESSEE IN DEFAULT BY NOT COMPLYIN G WITH THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT. THE ASSESSING OFFICER HAS BEEN LENIENT IN IMPOSING PENA LTY TO THE EXTENT OF RS.10,000/-, WHICH IS EQUIVALENT TO O NE SUCH DEFAULT, AS AGAINST THE DEFAULT OF ASSESSEE IN NON- COMPLIANCE OF VARIOUS DATES. ACCORDINGLY, WE UPHOLD THE 7 ITA NOS.67 TO 73/PUN/2015 AY.NOS.2006-07 TO2012-13 LEVY OF PENALTY OF RS.10,000/- UNDER SECTION 271(1) (B) OF THE ACT IN ASSESSMENT YEAR 2006-07. 10. FURTHER, THE ASSESSING OFFICER HAS LEVIED PENAL TY OF RS.10,000/- UNDER SECTION 271(1)(B) EACH FOR THE SA ME DEFAULT IN ASSESSMENT YEARS 2007-08 TO 2012-13. WHE RE THE ASSESSEE HAS BEEN HELD LIABLE TO PAY THE PENALT Y IN ASSESSMENT YEAR 2006-07 FOR A DEFAULT WHICH IS RE- RECURRING IN THE OTHER YEARS I.E. ON SAME DATES, WE FIND NO MERIT IN THE SAID LEVY OF PENALTY OF RS.10,000/- UN DER SECTION 271(1)(B) OF THE ACT IN EACH OF THE YEARS I .E. ASSESSMENT YEARS 2007-08 TO 2012-13. WE DIRECT THE ASSESSING OFFICER TO DELETE THE SAME. IN THE ENTIRE TY OF THE FACTS AND CIRCUMSTANCES, WE UPHOLD THE PENALTY OF RS.10,000/- IN ASSESSMENT YEAR 2006-07 AND THE PENA LTY LEVIED IN THE BALANCE YEARS I.E. ASSESSMENT YEARS 2 007-08 TO 2012-13 ARE DELETED. 11. IN THE RESULT, THE APPEAL IN ASSESSMENT YEAR 20 06-07 IS DISMISSED AND THE APPEALS IN OTHER YEARS I.E. ASSESSMENT YEARS 2007-08 TO 2012-13 ARE ALLOWED. 9. BEFORE US LD. D.R. HAS NOT POINTED ANY DISTINGUISHABLE FACTS IN THE FACTS OF THE PRESENT CASE AND THAT OF THE C ASE IN YASHODHAN NAMDEO CHAUDHARI (SUPRA). WE THEREFORE FOLLOWING THE SAME REASONING AND FOR SIMILAR REASONS UPHOLD THE LEVY OF PENALTY OF RS.10,000/- FOR A.Y. 2006-07 AND THE PENALTY FOR O THER YEARS NAMELY A.YS. 2007-08 TO 2012-13 ARE DELETED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE FOR A.Y. 2006 -07 IS DISMISSED AND THE APPEALS FOR OTHER A.YS. I.E., 2007-08 TO 20 12- 13 ARE ALLOWED. ORDER PRONOUNCED ON 5 TH JANUARY, 2017. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER $ / ACCOUNTANT MEMBER PUNE; ! DATED : 05 TH JANUARY, 2017. YAMINI 8 ITA NOS.67 TO 73/PUN/2015 AY.NOS.2006-07 TO2012-13 ( ) *!+, -,! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. THE CIT(A)-I, NASHIK. THE CIT(CENTRAL), NAGPUR. #$% &&'(, * '(, / DR, ITAT, B PUNE; %+, - / GUARD FILE ( / BY ORDER , //// // TRUE COPY // T // // TRUE COPY // //TRUE COPY// ./0 &1 '2 / SR. PRIVATE SECRETARY * '( , / ITAT, PUNE