Sri Dharmendra Kumar Tripathi, Lucknow V. Joint Director of Income Tax, Lucknow

ITA 757/LKW/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4389 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 30-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 133(6)

Judgement Text

I.T.A. NO.757/LKW/2017 ASSESSMENT YEAR:2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.757/LKW/2017 ASSESSMENT YEAR:2013-14 SHRI DHARMENDRA KUMAR TRIPATHI 1/21, RAJNI KHAND, SHARDA NAGAR, LUCKNOW. PAN:ACHPT 0935 C VS. JT. DIRECTOR (I&CI), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LEARNED CIT(A)-2, LUCKNOW DATED 29/08/2017 PERTAINING TO AS SESSMENT YEAR 2012- 2014. THE ONLY GROUND RAISED IN THIS APPEAL IS TH E SUSTENANCE OF PENALTY BY LEARNED CIT(A) WHICH THE ASSESSING OFFICER HAD IMPO SED U/S 272A(2)(C) OF THE ACT. 2. AT THE OUTSET, LEARNED A. R. SUBMITTED THAT ASSE SSEE HAD PURCHASED A CAR AND HE WAS REQUIRED BY THE ASSESSING OFFICER TH ROUGH A NOTICE U/S 133(6) TO FILE CERTAIN INFORMATION REGARDING THE PU RCHASE OF CAR. IT WAS SUBMITTED THAT ASSESSEE HAD GIVEN THE DOCUMENTS REG ARDING PURCHASE OF CAR AND ITS EXPLANATION FOR THE SOURCE TO HIS COUNSEL BUT THE COUNSEL, DUE TO HIS ILL HEALTH, COULD NOT FILE THE REPLY AND THEREFORE, THE ASSESSING OFFICER IMPOSED PENALTY U/S 272A(2)(C) OF THE ACT. LEARNED A. R. IN THIS RESPECT FILED A DULY SWORN IN AFFIDAVIT STATING THEREIN THA T HE WAS A PRACTICING INCOME APPELLANT BY SHRI B. B. SRIVASTAVA, ADVOCATE RESPONDENT BY SHRI C. K. SINGH, D.R. DATE OF HEARING 30 / 10 /201 8 DATE OF PRONOUNCEMENT 31 / 10 /201 8 I.T.A. NO.757/LKW/2017 ASSESSMENT YEAR:2013-14 2 TAX LAWYER AND ASSESSEE HAD SUBMITTED ALL PAPERS AS ASKED FOR IN LETTER U/S 133(6) OF THE ACT TO HIM WHICH HE COULD NOT FILE DU E TO HIS ILL HEALTH BUT LATER ON THE SAME WAS FILED. IT WAS SUBMITTED THAT THE A DVOCATE OF THE ASSESSEE, AS PER AFFIDAVIT, IS 64 YEARS OLD AND THE DELAY IN FILING THE REPLY TO NOTICE U/S 133(6) HAD NOT OCCURRED BECAUSE OF THE FAULT OF THE ASSESSEE THEREFORE, THE ASSESSEE MAY NOT BE SUBJECTED TO PENALTY FOR HIS NO FAULT. IT WAS FURTHER SUBMITTED THAT THE REPLY GIVEN BY THE ASSESSEE REGA RDING PURCHASE OF CAR WAS DULY ACCEPTED BY THE AUTHORITIES AND NO ADVERSE VIEW WAS TAKEN BY THEM. THEREFORE, ALSO THE PENALTY SHOULD NOT HAVE BEEN IMPOSED. 3. ON THE OTHER HAND, LEARNED D. R. SUPPORTED THE O RDERS OF THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. IT IS AN UNDISPUTED FACT THAT TH E FIRST NOTICE U/S 133(6) WAS ISSUED ON 23 RD JULY, 2014 AND FURTHER NOTICE DATED 19/09/2014 WAS ALSO ISSUED HOWEVER, BOTH THE NOTICES REMAINED UNCOMPLIE D. AS PER THE AFFIDAVIT OF ADVOCATE THE ASSESSEE HAD HANDED OVER COMPLETE D OCUMENTS TO HIM FOR HIS FURTHER FILING BUT THAT COULD NOT BE FILED WITH IN TIME AS THE ADVOCATE OF ASSESSEE WAS ILL THEREFORE, THERE IS NO FAULT ON TH E PART OF THE ASSESSEE. WE FURTHER FIND THAT THE REPLY WAS LATER ON FILED ON 1 6/06/2015 AND THE REPLY WAS ALSO ACCEPTED BY THE AUTHORITIES AND NO ADVERSE VIEW WAS TAKEN. THE REPLY FILED BY THE ASSESSEE HAS BEEN INCORPORATED B Y LEARNED CIT(A) IN HIS ORDER AND IT WAS ALSO STATED BEFORE LEARNED CIT(A) THAT THE DELAY IN FILING OF REPLY TO THE NOTICE U/S 133(6) WAS NOT INTENTIONAL AS ASSESSEE HAD ALREADY DELIVERED THE REQUIRED DOCUMENTS TO HIS ADVOCATE WH ICH DUE TO HIS ILL HEATH COULD NOT BE FILED. WE FURTHER FIND THAT NO ADVERS E VIEW WAS TAKEN BY THE AUTHORITIES BELOW ON THE DOCUMENTS SUBMITTED BY THE ASSESSEE AND IT HAS BEEN CONFIRMED BY THE COUNSEL OF THE ASSESSEE IN HI S AFFIDAVIT. THE ABOVE FACTS AND CIRCUMSTANCES CLEARLY DEMONSTRATE THAT TH ERE WAS NO FAULT ON THE I.T.A. NO.757/LKW/2017 ASSESSMENT YEAR:2013-14 3 PART OF THE ASSESSEE AND DELAY OCCURRED ONLY ON ACC OUNT OF ILLNESS OF THE ADVOCATE. WE FURTHER FIND THAT THERE WAS NO REASON FOR ASSESSEE TO DELAY THE FILING OF THE REPLY AS HE HAD COMPLETE EXPLANAT ION FOR THE PURCHASE OF CAR AND FOR WHICH HE HAD LATER ON SUBMITTED HIS EXP LANATION AND THE ASSESSING OFFICER WAS SATISFIED WITH THE REPLY. TH E DELAY IN FILING THE REPLY CANNOT BE ATTRIBUTED TO THE ASSESSEE AS THE DELAY H AS BEEN OWNED BY THE COUNSEL OF THE ASSESSEE AND MOREOVER THE ASSESSEE D ID NOT GAIN ANYTHING BY DELAYING THE SUBMISSIONS. THEREFORE, KEEPING IN VI EW THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DELETE THE PENALTY SU STAINED BY CIT(A). (ORDER PRONOUNCED IN THE OPEN COURT ON 31/10/2018) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:31/10/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW