BNC Power Projects Ltd., Bhusawal V. Income-tax Officer,

ITA 75/PUN/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0351 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 11 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 29-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 16-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUDHANSHU SHEKHAR
• Keywords: Search and seizure
• Section: 142(1); 133A; 153A; 132; 144; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / ITA NO S . 74 TO 78 /PN/20 1 5 / ASSESSMENT YEAR S : 20 0 8 - 0 9 TO 20 12 - 13 BNC POWER PROJECTS LTD., BNC POWER PROJECTS LTD., 11, SWED BINDU, SHANTI NAGAR, YAWAL ROAD, BHUSAWAL - 425201 . / APPELLANT PAN: AADCB2599R VS. THE INCOME TAX OFFICER, (CE NTRAL) - 1, NASHIK . / RESPONDENT / APPELLANT BY : S HRI NIKHIL PATHAK / RESPONDENT BY : S HRI SUDHANSHU SHEKHAR / DATE OF HEARING : 29 . 1 2 .201 6 / DATE OF PRON OUNCEMENT: 2 9 . 1 2 .201 6 / / ORDER PER SUSHMA CHOWLA, J M : TH IS BUNCH OF FIVE APPEALS FILED BY THE ASSESSEE ARE AGAINST CONSOLIDATED ORDER OF CIT (A) - I, NASHIK , DATED 1 3 . 11 .20 1 4 RELATING TO ASSESSMENT YEAR S 20 0 8 - 0 9 TO 20 12 - 13 AGAINST PENALTY LEVIED UNDER SECTION 271(1)( B ) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . ITA NO S . 74 TO 7 8 /PN/20 1 5 BNC POWER PROJECTS LTD. 2 2 . ALL THE APPEALS FILED BY THE ASSESSEE RELATING TO THE SAME ASSESSEE ON IDENTICAL ISSUES WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SA KE OF CONVENIENCE. HOWEVER, FOR THE PURPOSE OF ADJUDICATING THE ISSUE, REFERENCE IS BEING MADE TO THE FACTS AND ISSUE IN ITA NO. 7 4/PN/201 5 . 3. THE ASSESSEE IN ITA NO. 74 /PN/201 5 HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - 1 . THE ORDER PASSED IS ILLEGAL, INVALID AND BAD IN LAW. 2. THE ACT OF LEARNED AO LEVYING THE PENALTY U/S 271(1)(B) OF INCOME TAX ACT, 1961 IS UNJUSTIFIED. 3. THAT THE FAILURE TO COMPLIANCES WAS NOT INTENTIONAL AND NOT MERE EXCUSES. 4. THE ISSUE RAISED IN ALL THESE APPEALS IS AGAINST T HE LEVY OF PENALTY 4. THE ISSUE RAISED IN ALL THESE APPEALS IS AGAINST T HE LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT AT RS.10,000/ - EACH. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE, AT THE OUTSET, POINTED OUT THAT THE ISSUE RAISED IN THIS BUNCH OF APPEALS IS IDENTICAL TO THE RATIO LAID DOWN BY THE TRIBUNA L IN THE CASE OF SHRI YASHODHAN NAMDEO CHAUDHARI VS. ITO IN ITA NOS.86 TO 92/PN/2015 RELATING TO ASSESSMENT YEARS 2006 - 07 TO 2012 - 13, ORDER DATED 08.07.2016 AND IN THE BUNCH OF APPEALS I.E. SHRI MAHESH B. CHAUDHARI & ORS. WITH LEAD ORDER IN ITA NOS.1444/PN /2016 TO 1450/PN/2016, RELATING TO ASSESSMENT YEARS 2006 - 07 TO 2012 - 13, ORDER DATED 07.10.2016 . 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STRESSED THAT THOUGH THE ISSUE BEFORE THE TRIBUNAL IN THE CASE OF RELATED PARTY IS ITA NO S . 74 TO 7 8 /PN/20 1 5 BNC POWER PROJECTS LTD. 3 IDENTICAL. HOWEV ER, BECAUSE OF DEFAULT OF THE ASSESSEE, PENALTY SHOULD BE LEVIED FOR EACH OF THE YEARS AT RS.10,000/ - EACH. 6 . BRIEFLY, IN THE FACTS OF THE CASE, SEARCH AND SEIZURE OPERATION WAS CARRIED OUT ON CHAUDHARI GROUP OF CASES, BHUSAWAL ON 04.10.2011. THE ASSESS EE COMPANY PERTAINS TO CHAUDHARI GROUP OF CASES . THE RESIDENTIAL PREMISE S OF VARIOUS PERSONS WERE SEARCHED UNDER SECTION 132 OF THE ACT AND SURVEY ACTION UNDER SECTION 133A OF THE ACT W ERE CARRIED OUT AT THE BUSINESS PREMISES OF THE CONCERNS . DURING THE COURSE OF SEARCH, SEVERAL DOCUMENTS WERE SEIZED AND THE STATEMENTS OF THE ASSESSEE AND ITS EMPLOYEES WERE RECORDED. THEREAFTER, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT, IN RESPONSE TO WHICH, THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME. FURTHER, THE ASSESSING OFFICER ISSUED OTHER NOTICES AND THERE WAS NO COMPLIANCE FROM THE ASSESSEE. CONSEQUENTLY, THE ASSESSING OFFICER PROCEEDED TO COMPLETE ASSESSMENT UNDER SECTION 144 OF THE ACT. THE INCOME IN THE CASE OF ASSESSEE WAS ASSE SSED AT NIL. THE ASSESSING OFFICER ALSO INITIATED PROCEEDINGS UNDER SECTION 271(1)(B) OF THE ACT FOR NON - COMPLIANCE TO NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT. DURING THE COURSE OF PENALTY PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE FIRST NOTI CE WAS ISSUED UNDER SECTION 142(1) OF THE ACT ON 09.05.2013, THEN ON 03.10.2013 , ON 13.12.2013 AND LASTLY ON 19.12.2013 . THE ASSESSEE HAD FAILED TO APPEAR BEFORE THE ASSESSING OFFICER IN RESPONSE TO ANY OF THE NOTICES, NO RETURN OF INCOME WAS FILED BY THE ASSESSEE UNDER SECTION 139 / 153A OF THE ACT. HOWEVER, THE COPY OF AUDIT REPORT WAS OBTAINED FROM SHRI MOHAN B. AGRAWAL, C.A. , WHO HAD CARRIED OUT THE AUDIT IN THE CASE OF CHAUDHARI GROUP, ON THE BASIS OF INFORMATION, THE ASSESSMENT WAS COMPLETED IN THE CASE OF ASSESSEE. THE ASSESSING OFFICER THUS, HELD THAT THE ASSESSEE HAD DEFAULTED IN NON - ITA NO S . 74 TO 7 8 /PN/20 1 5 BNC POWER PROJECTS LTD. 4 APPEARANCE IN RESPONSE TO VARIOUS NOTICES ISSUED UNDER SECTION 142(1) OF THE ACT. HOWEVER, PENALTY UNDER SECTION 271(1)(B) OF THE ACT WAS LEVIED @ RS.10,000/ - FOR E ACH OF THE YEARS I.E. 2008 - 09 TO 2012 - 13. 7. THE PENALTY LEVIED BY THE ASSESSING OFFICER, IN TURN, WAS CONFIRMED BY THE CIT(A), AGAINST WHICH, THE ASSESSEE IS IN APPEAL BEFORE US. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE ARISING IN THE PRESENT APPEAL IS AGAINST THE DEFAULT IN NON - APPEARANCE BEFORE THE ASSESSING OFFICER IN RESPONSE TO NOTICES ISSUED UNDER SECTION 142(1) OF THE ACT ON 20.05.2013, 14.10.2013, 26.12.2013 AND 27.12.2013 HAVE BEEN CONSIDERED AS BASIS FOR LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT. THE SAID PENALTY HAS BEEN LEVIED FOR ALL THE CAPTIONED ASSESSMENT YEARS I.E. ASSESSMENT YEARS 200 8 - 0 9 TO 2012 - 13. SIMILAR ISSUE OF LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT FOR THE IDENTICAL ASSESSMEN T YEARS I.E. ASSESSMENT YEARS 2006 - 07 TO 2012 - 13 AGAINST SIMILAR DEFAULT IN NON - APPEARANCE BEFORE THE ASSESSING OFFICER IN RESPONSE TO NOTICES ISSUED UNDER SECTION 142(1) OF THE ACT, AROSE BEFORE THE TRIBUNAL IN THE RELATED CASE OF SHRI YASHODHAN NAMDEO CH AUDHARI VS. ITO (SUPRA). THE TRIBUNAL CONFIRMED THE PENALTY IN ASSESSMENT YEAR 2006 - 07 AND SINCE THE DEFAULT WAS RECURRING IN THE OTHER YEARS ON SAME DATE, THE PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE ACT FOR BALANCE YEARS WAS DELETED. THE TRIBUNAL HELD AS UNDER : - 9. ON THE PERUSAL OF RECORD AND THE ORDERS OF THE AUTHORITIES BELOW, WE FIND THE FACTUAL ASPECTS OF THE CASE ARE THAT AFTER SEARCH AND SEIZURE OPERATION CONDUCTED ON THE CHAUDHARI GROUP OF CASES, THE RESIDENTIAL PREMISES OF THE ASSESSEE W ERE SIMULTANEOUSLY SEARCHED. THEREAFTER, NOTICE UNDER SECTION 153A WAS ISSUED TO THE ASSESSEE AND THE ASSESSEE IN RETURN SUBMITTED THAT THE ORIGINAL RETURN OF INCOME FILED UNDER SECTION 139 BE TREATED AS FILED IN RESPONSE TO THE SAID NOTICE. THEREAFTER, NOTICE 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 WITH THE SAID NOTICE, SHOW - ITA NO S . 74 TO 7 8 /PN/20 1 5 BNC POWER PROJECTS LTD. 5 CAUSE WAS ISSUED TO THE ASSESSEE AS TO WHY PENALTY UNDER SECTION 271(1)(B) OF THE ACT SHOULD NOT BE LEVIED. UNDER THE PROVISIONS OF THE SAID SECTION WHERE A PERSON HAS DEFAULTED TO COMPLY WITH THE NOTICE ISSUED UNDER SECTION 142(1) AND/OR FAILED TO FURNISH THE INFORMATION/DOCUMENTS SOUGHT FOR, THEN THE ASSESSING 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 CASE, THE ASSESSEE INITIALLY HAD DEFAULTED AND HAD NOT CO MPLIED WITH THE NOTICES UNDER SECTION 142(1) OF THE ACT. HOWEVER, NO DOUBT COMPLETE INFORMATION WAS FILED BY THE ASSESSEE BUT THE SAME DOES NOT ABSOLVE THE ASSESSEE IN DEFAULT BY NOT COMPLYING WITH THE NOTICE ISSUED UNDER SECTION 142(1) OF THE ACT. THE A SSESSING OFFICER HAS BEEN LENIENT IN IMPOSING PENALTY TO THE EXTENT OF RS.10,000/ - , WHICH IS EQUIVALENT TO ONE SUCH DEFAULT, AS AGAINST THE DEFAULT OF ASSESSEE IN NON - COMPLIANCE OF VARIOUS DATES. ACCORDINGLY, WE UPHOLD THE LEVY OF PENALTY OF RS.10,000/ - U NDER SECTION 271(1)(B) OF THE ACT IN ASSESSMENT YEAR 2006 - 07. 10. FURTHER, THE ASSESSING OFFICER HAS LEVIED PENALTY OF RS.10,000/ - UNDER SECTION 271(1)(B) EACH FOR THE SAME DEFAULT IN ASSESSMENT YEARS 2007 - 08 TO 2012 - 13. WHERE THE ASSESSEE HAS BEEN HELD L IABLE TO PAY THE PENALTY 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/ - UNDER SECTION 271(1)(B) OF THE ACT IN EACH OF THE YEARS I.E. ASSESSME NT YEARS 2007 - 08 TO 2012 - 13. WE DIRECT THE ASSESSING OFFICER TO DELETE THE SAME. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES, WE UPHOLD THE PENALTY OF RS.10,000/ - IN ASSESSMENT YEAR 2006 - 07 AND THE PENALTY LEVIED IN THE BALANCE YEARS I.E. ASSESSMENT Y EARS 2007 - 08 TO 2012 - 13 ARE DELETED. 9. THE TRIBUNAL FURTHER IN BUNCH OF APPEALS IN THE CASE OF RELATED ASSESSEE 9. THE TRIBUNAL FURTHER IN BUNCH OF APPEALS IN THE CASE OF RELATED ASSESSEE I.E. SHRI MAHESH B. CHAUDHARI & ORS. WITH LEAD ORDER IN ITA NOS.1444/PN/2016 TO 1450/PN/2016, RELATING TO ASSESSMENT YEARS 2006 - 07 TO 2012 - 13 , VIDE ORDER DATED 07.10.2016 HAD UPHELD THE PENALTY IN THE FIRST YEAR AND DELETED THE PENALTY IN SUCCEEDING YEARS. 10 . THE ISSUE ARISING IN THE PRESENT APPEAL S FILED BY THE ASSESSEE IS IDENTICAL TO THE ISSUE BEFORE THE TRIBUNAL IN SHRI YASHODHAN NAMDEO C HAUDHARI VS. ITO (SUPRA) AND IN THE CASE OF SHRI MAHESH B. CHAUDHARI & ORS. (SUPRA) AND FOLLOWING THE SAME PARITY OF REASONING, WE HOLD THAT THE ASSESSEE IS LIABLE TO LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT RELATING TO ASSESSMENT YEAR 200 8 - 0 9 . HOWEVER, THE SAID PENALTY LEVIED UNDER SECTION ITA NO S . 74 TO 7 8 /PN/20 1 5 BNC POWER PROJECTS LTD. 6 271(1)(B) OF THE ACT RELATING TO ASSESSMENT YEARS 200 9 - 1 0 TO 2012 - 13 ARE DELETED. 1 1 . IN THE RESULT, APPEAL OF ASSESSEE RELATING TO ASSESSMENT YEAR 2008 - 09 IS DISMISSED AND OTHER APPEALS RELATING TO ASSESSMEN T YEARS 2009 - 10 TO 2012 - 13 ARE ALLOWED. ORDER P RONOUNCED IN OPEN COURT ON THIS 29 TH DAY OF DECEM BER , 201 6 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 29 TH DECE MBER , 201 6 . GCVSR / / COPY OF THE ORDER IS FORWARDED TO : 1. / TH E APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - I , NASHIK ; 4. / THE CIT (CENTRAL), NAGPUR ; 5. , , / DR B , ITAT, PUNE; 6. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE