Satya Hari Samui, Howrah V. ITO, Ward - 46(4), Kolkata, Kolkata

ITA 720/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5437 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1998-1999
• Appeal Filed On: 17-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 271(1)(b); 142(1)

Judgement Text

ITA NO. 720/KOL/2018 A.Y. 1998-1999 SATYA HARI SAMUI, HOWRAH 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 720/KOL/2018 ASSESSMENT YEAR: 1998-1999 SATYA HARI SAMUI,.................................. .............................APPELLANT DHARSA COLONY, P.O. GIP COLONY, RAMRAJATALA, HOWRAH-711 112 [PAN: ALAPS 2193 R] -VS.- INCOME TAX OFFICER,................................ ...........................RESPONDENT WARD-46(4), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 APPEARANCES BY: N O N E, FOR THE APPELLANT SHRI SHANKAR KUMAR HALDER, JCIT, SR. D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JANUARY 30, 2019 DATE OF PRONOUNCING THE ORDER : JANUARY 30, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-14, KOLKATA DA TED 31.01.2018, WHEREBY HE CONFIRMED THE PENALTY OF RS.10,000/- IMP OSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(B) OF THE IN COME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L. IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3)/147 VIDE AN ORDER DA TED 30.03.2006, THE TOTAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.53,20,630/-. HE ALSO INITIATED THE PENALTY PROCE EDINGS UNDER SECTION 271(1)(B) FOR THE ALLEGED NON-APPEARANCE OF THE ASS ESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND SINCE THERE WA S NO SATISFACTORY EXPLANATION OFFERED BY THE ASSESSEE IN RESPONSE TO THE SHOW-CAUSE NOTICE ITA NO. 720/KOL/2018 A.Y. 1998-1999 SATYA HARI SAMUI, HOWRAH 2 ISSUED BY THE ASSESSING OFFICER DURING THE COURSE O F THE SAID PROCEEDINGS, THE ASSESSING OFFICER IMPOSED A PENALTY OF RS.10,00 0/- UNDER SECTION 271(1)(B) OF THE ACT. THE PENALTY IMPOSED BY THE AS SESSING OFFICER UNDER SECTION 271(1)(B) WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND THE FO LLOWING SUBMISSION WAS MADE ON BEHALF OF THE ASSESSEE DURING THE COURS E OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(APPEALS) IN SUPPORT OF HIS CASE:- THIS INSTANT APPEAL WAS PREFERRED ON BEING AGGRIEV ED BY THE PENALTY ORDER PASSED BY LD. A.O. IMPOSING PENALTY O F RS. 10000.00 FOR NON-COMPLIANCE TO THE NOTICE ISSUED IN COURSE OF ASSESSMENT PROCEEDING. THE ASSESSMENT, IN QUESTION, FOR THE ASSESSMENT YEA R UNDER CONSIDERATION WAS COMPLETED U/S 143(3)/147 DATED 30 .03.2006 ON A TOTAL INCOME OF RS.53,20,632.00 AGAINST THE RE TURNED INCOME OF RS.41,624.00. THE PENALTY U/S 271(1)(B) OF THE INCOME TAX ACT, 19 61 FOR NON- COMPLIANCE TO THE NOTICES ISSUED BY THE INCOME TAX DEPARTMENT WITHOUT ANY CAUSE OR REASON. IN THIS CASE THE ENTIR E ASSESSMENT ORDER IS ABSOLUTELY SILENT, THE DATE ON WHICH, THE APPELLANT FAILED TO RESPOND THE NOTICE FIXING THE DATE OF HEA RING. (COPY ENCLOSED) THAT IN THE PENALTY ORDER PASSED BY THE LD. A.O. IT HAS BEEN POINTED OUT THAT THE APPELLANT FAILED TO APPEAR ON 29.11.2005, HOWEVER, THE ASSESSMENT ORDER MENTIONS THAT IN COMP LIANCE TO THE NOTICE U/S 142(1) COMPLIANCE WAS MADE. THEREFOR E, APPARENTLY THERE HAS NOT BEEN ANY COMPLIANCE FROM T HE FACE OF THE ORDER. IN VIEW OF THIS THE APPELLANT STATES THAT COMPLIANC E TO THE NOTICES ISSUED BY THE DEPARTMENT WAS MADE AND NO DE FAULT OCCURRED. THE PENALTY ORDER IMPOSING A PENALTY OF R S.10000.00 U/S 271(1)(B) OF THE INCOME TAX ACT, 1961 MAY KINDL Y BE QUASHED, AND FOR THIS ACT OF KINDNESS THE APPELLANT SHALL EVER PRAY AND OBLIGE. 3. THE SUBMISSION MADE BY THE ASSESSEE AS ABOVE WAS NOT FOUND ACCEPTABLE BY THE LD. CIT(APPEALS) AND HE PROCEEDED TO CONFIRM THE PENALTY IMPOSED UNDER SECTION 271(1)(B) FOR THE FOL LOWING REASON GIVEN IN THE IMPUGNED ORDER:- AS ALL THE GROUNDS RELATE TO THE LONE ISSUE OF LEV Y OF PENALTY U/S 271(1)(B), THE SAME ARE CONSIDERED TOGETHER. DU RING THE ASSESSMENT PROCEEDINGS, THE APPELLANT WAS ASKED TO APPEAR ITA NO. 720/KOL/2018 A.Y. 1998-1999 SATYA HARI SAMUI, HOWRAH 3 BEFORE THE AO OR FURNISH APPROPRIATE SUBMISSION ON 29.11.2015. HOWEVER, ON GETTING NO RESPONSE FROM TH E ASSESSEE THE AO INITIATED PENALTY PROCEEDINGS U/S. 271B DURING THE CURRENCY OF ASSESSMENT PROCEEDINGS. A LE TTER FIXING THE HEARING FOR SUCH PROCEEDINGS ON 18.08.2016 WAS ISSUED IN THIS REGARD BUT COULD NOT BE SERVED. LATER THE SAME WAS SERVED BY AFFIXATION AFTER FAILING TO GET IT SERVED THROUG H THE INSPECTOR. IN RESPONSE, NEITHER THE ASSESSEE NOR HI S AUTHORIZED REPRESENTATIVE APPEARED BEFORE THE AO NOR FURNISHED ANY SUBMISSIONS IN THIS REGARD. CONSEQUENTLY; FOR SINGL E DAY OF DEFAULT THE AO LEVIED A PENALTY OF RS.10,000/- AGAI NST WHICH THE APPELLANT IS IN APPEAL. DURING THE APPELLATE PROCEEDINGS, THE A/R OF THE AP PELLANT ARGUES THAT THE ASSESSMENT ORDER IS ABSOLUTELY SILE NT ABOUT THE DATE ON WHICH THE APPELLANT FAILED TO RESPOND A ND, THEREFORE, HE PLEADS THAT THE PENALTY LEVIED MAY NO T BE APPROPRIATE. A CAREFUL CONSIDERATION WAS GIVEN TO T HE APPELLANT'S CONTENTION. I OBSERVE THAT THE AO HAS B ROUGHT OUT CLEARLY THE DATE OF DEFAULT AS 29.11.2015 IN THE PE NALTY ORDER. THE APPELLANT HAS NOT BROUGHT OUT ANY CONTRARY EVID ENCE TO THE FACT THAT NOTICE FOR COMPLIANCE ON THE SAID DAT E HAS NOT BEEN RECEIVED. IT IS ALSO NOT BROUGHT OUT WHETHER T HERE WAS ANY BONAFIDE REASON FOR NON-COMPLIANCE ON THE SAID DATE EITHER DURING THE PENALTY PROCEEDINGS OR DURING THE APPELLATE PROCEEDINGS. IT IS ALSO OBSERVED THAT AO HAS VALIDL Y INITIATED THE PENALTY PROCEEDING BY CLEARLY MENTIONING THIS I N THE ASSESSMENT ORDER ITSELF. I, THEREFORE, DO NOT FIND ANY MERIT IN THE APPELLANT'S CONTENTION THAT THE DATE OF DEFAULT HAS NOT BEEN MENTIONED IN THE ASSESSMENT ORDER. THAT THE AP PELLANT HAS NOT APPEARED BEFORE THE AO OR FURNISHED ANY SUB MISSION ON THE SAID DATE AND CONTINUED TO DO SO DURING THE PENALTY PROCEEDINGS INDICATES THE CAVALIER AND NON-CHALLANT ATTITUDE TOWARDS PROPER COMPLIANCE OF LEGAL NOTICES. THAT TH ERE IS NO BONAFIDE REASON ON VARIOUS DATES OF NON-COMPLIANCE SUFFICIENTLY DRAWS THE CONCLUSION THAT THE BREACH O F LAW IS NOT MERELY A TECHNICAL OR VENIAL BREACH BUT DELIBERATE AND A SUBSTANTIVE ONE. IN VIEW OF THIS THE UNDERSIGNED IS NOT INCLINED TO INTERFERE WITH THE PENALTY IMPOSED. APPELLANT'S GROUNDS FALL. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING FIXED IN THIS CASE, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. THIS APPEAL OF THE ASSESSEE IS ACCORDINGLY BEING DISPOSED OF EX-PARTE QUA THE ASSESSEE AFTER HEARING THE ARGUMENTS OF THE LD. D.R. AND PERUSING THE RELEVANT MATERIAL AVAILAB LE ON RECORD. IT IS ITA NO. 720/KOL/2018 A.Y. 1998-1999 SATYA HARI SAMUI, HOWRAH 4 OBSERVED THAT IN THE WRITTEN SUBMISSION FILED BEFOR E THE LD. CIT(APPEALS), SPECIFIC OBJECTION WAS RAISED ON BEHALF OF THE ASSE SSEE REGARDING THE EXACT DATE ON WHICH HE HAD ALLEGEDLY FAILED TO APPE AR BEFORE THE ASSESSING OFFICER. IT WAS CONTENDED IN THIS REGARD THAT EVEN THOUGH THE DATE OF DEFAULT WAS MENTIONED AS 29.11.2005 IN THE PENALTY ORDER, THERE WAS NO REFERENCE WHATSOEVER TO THE SAID DATE STATED TO BE FIXED FOR HEARING IN THE ASSESSMENT ORDER. A PERUSAL OF THE R ELEVANT ASSESSMENT ORDER FULLY SUPPORTS AND SUBSTANTIATES THIS STAND O F THE ASSESSEE. ON THE OTHER HAND, THERE IS A CLEAR MENTION OF ISSUE OF NO TICE BY THE ASSESSING OFFICER UNDER SECTION 142(1), WHICH WAS DULY COMPLI ED WITH BY THE ASSESSEE BY FILING A WRITTEN SUBMISSION ON 15.12.20 05. IT IS ALSO RELEVANT TO NOTE HERE THAT THE ASSESSMENT WAS COMPLETED BY T HE ASSESSING OFFICER UNDER SECTION 143(3)/147 AFTER TAKING INTO CONSIDER ATION THE SUBMISSIONS MADE BY THE ASSESSEE WHICH GOES TO SHOW THAT THE DE TAILS AND DOCUMENTS REQUIRED FOR THE PURPOSE OF ASSESSMENT WERE DULY FU RNISHED BY THE ASSESSEE. KEEPING IN VIEW ALL THESE FACTS AND CIRCU MSTANCES OF THE CASE, WE ARE OF THE VIEW THAT IT IS NOT A FIT CASE TO IMP OSE PENALTY UNDER SECTION 271(1)(B). WE ACCORDINGLY DELETE THE SAID PENALTY I MPOSED BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPE ALS) AND ALLOW THIS APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON JANUARY 30, 2 019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 30 TH DAY OF JANUARY, 2019 COPIES TO : (1) SHRI SATYA HARI SAMUI, DHARSA COLONY, P.O. GIP COLONY, RAMRAJATALA, HOWRAH-711 112 (2) INCOME TAX OFFICER, WARD-46(4), KOLKATA, 3, GOVERNMENT PLACE (WEST), KOLKATA-700 001 ITA NO. 720/KOL/2018 A.Y. 1998-1999 SATYA HARI SAMUI, HOWRAH 5 (3) COMMISSIONER OF INCOME TAX (APPEALS)-14, KOLKAT A, (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.