Sri Girish Chandra Shukla, Lucknow V. Joint Director of Income Tax (I&CI), Lucknow

ITA 764/LKW/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7481 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 04-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MADHUK
• Keywords: Principle of natural justice
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 764/LKW/2017 ASSESSMENT YEAR: 2012 - 13 GIRISH CHANDRA SHUKLA 14/17, CLAY SQUARE KABIR MARG, LU CKNOW V. JDIT (I&CI) LUCKNOW T AN /PAN : ACFPS6177D (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI S. C. DIXIT, ADVOCATE RESPONDENT BY: SHRI S. K. MADHUK, CIT (DR) DATE OF HEARING: 30 04 201 9 DATE OF PRONOUNCEMENT: 03 0 5 201 9 O R D E R PER A. D. JAIN, V.P . : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD. CIT(A) - 2, LUCKNOW, DATED 28/9/2017 FOR ASSESSMENT YEAR 2012 - 13, TAKING THE FOLLOWING GROUNDS OF APPEAL: - 1 . BECAUSE THE ORDER OF THE LEARNED CIT AND THE ADD. DIRECTOR OF INCOME TAX INTELL IGENCE & CRIMINAL INVESTIGATION) ARE ARBITRARY, MISCONCEIVED AND AGAINST THE LAW OF NATURAL JUSTICE. 2 . BECAUSE THE ORDER PASSED BY THE ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS, IN PENALTY LEVIED OF RS. 40400 . 00 ON THE APPELLANT, ON THE BASIS OF WRONG INTERPRETA TION OF THE SECTIO N 272A(2) OF THE INCOME TAX ACT, WITHOUT CONSIDERING THE FACTS, SUBMITTED BY THE APPELLANT VIDE LETTER DATED 23/4/2015 AND 23/09/2015 . 3 . BECAUSE BOTH LEARNED AUTHORITY HAVE ERRED IN LAW AND ON FACTS IS NOT CONSIDERING THE FACTS. THAT THE AP PELLANT HAS FILED REPLY VIDE LETTER DATED 23/4/2015. ITA NO.764/LKW/2017 PAGE 2 OF 4 4 . BECAUSE THE ASSESSMENT ORDER IS BEING CRYPTIC AND HAVING BEEN PASSED WITHOUT SECTION OF MIND IT IS ARBITRARY EXERCISE OF POWER. 5 . BECAUSE THE FINDING RECORDED BY THE ADD. DIRECTOR OF INCOME TAX (INTELLIGEN CE & CRIMINAL INVESTIGATION) IS CLEAR MISREADING OF DOCUMENT ON RECORD AND UTTER DISREGARD OF THE PROVISIONS OF LAW CAUSING GRAVE INJUSTICE O THE APPELLANT RESULTING IN GROSS FAIL URE OF JUSTICE TO THE APPELLANT. 6 . BECAUSE THE ORDER APPEALED AGAINST IS CONTRA RY TO FACTS, LAW AND PRINCIPALS D NATURAL JUSTICE. 7 . BECAUSE IN RELATION TO THE GROUNDS OF APPEAL TA KEN HEREIN FORE, THE 'APPELLANT BEGS TO REFER AND RELY UPON THE AVERMENTS THAT HAVE BEEN MADE IN THE STATEMENT OF FACTS ACCOMPANYING THE MEMO OF APPEAL ITSEL F. 2 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A RETIRED EMPLOYEE OF GOVT. OF UTTAR PRADESH, WAS ASKED BY THE JDIT(I&CI) REGARDING THE SOURCE OF PURCHASE OF MOTOR VEHICLES ALONG WITH DOCUMENTARY EVIDENCE/COPY OF BANK ACCOUNT . IN THIS REGARD , NOTIC ES WERE ISSUED TO THE ASSESSEE AND ON FAILURE OF THE ASSESSEE TO COMPLY WITH THE NOTICES, A PENALTY OF RS.40,400/ - UNDER SECTION 272A(2)(C) OF THE ACT WAS IMPOSED ON THE ASSESSEE, REJECTING THE CONTENTION OF THE ASSESSEE THAT THE RELEVANT DETAILS CAN BE SE EN FROM THE RETURN OF INCOME. 3 . IN APPEAL BEFORE THE LD. CIT(A), THE LD. CIT(A) CONFIRMED THE ORDER OF THE A.O IMPOSING THE PENALTY OF RS.40,400/ - UNDER SECTION 272A(2)(C) OF THE ACT. 4 . BEFORE US, THE LD. A.R. OF THE ASSESSEE SUB MITTED THAT THE DEPARTMENT HAD CALLED FOR INFORMATION UNDER SECTION 133(6) OF THE ACT, TO WHICH THE ASSESSEE FILED REPL IES VIDE LETTER S DATED 23/4/2015 AND 23/9/2015 FURNISHING THE DETAILS SOUGHT FOR BY THE DEPARTMENT , ITA NO.764/LKW/2017 PAGE 3 OF 4 THEREFORE, THE PENALTY LEVIED BY THE A.O AND CONFIRMED BY THE LD. CI T(A) UNDER SECTION 272A(2)(C) OF THE ACT IS UNCALLED FOR AND LIABLE TO BE DELETED. 5 . THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE FAILED TO COMPLY WITH THE NOTICE S ISSUED UNDER SECTION 133(6) OF THE ACT AND THEREFORE, THE PENALTY HAS RIGHTLY BEEN LEVIED BY THE A.O AND CONFIRMED BY THE LD. CIT(A) UNDER SECTION 272A(2)(C) OF THE ACT. 6 . HEARD. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE, A RETIRED EMPLOYEE OF GOVT. OF UTTAR PRADESH, IS A REGULAR INCOME TAX ASSESSEE. FOR THE YEAR UNDER CONSIDERATIO N, DEPARTMENT ISSUED NOTICE , DATED 19/9/2014 UNDER SECTION 133(6) OF THE ACT CALLING FOR CERTAIN INFORMATION FROM THE ASSESSEE. THE ASSESSEE VIDE REPLY , DATED 23/9/2015 SUBMITTED THAT THE ASSESSEE IS A RETIRED EMPLOYEE OF THE GOVT. OF UTTAR PRADESH AND RE GULAR INCOME TAX ASSESSEE; THAT AFTER RETIREMENT, FREQUENTLY FOR 15 DAYS OR A MONTH , ASSESSEE STAYED AT HIS HOMETOWN, KHAJU H A, DISTT. FATEHPUR TO LOOK AFTER THE AGRICULTURE; THAT DURING THIS PERIOD, THE AFORESAID NOTICE ISSUED BY THE DEPARTMENT WAS RECEIVE D AND THEREFORE, THERE WAS A DELAY IN RESPONDING TO THE SAID NOTICE; AND THAT THE DELAY IN FILING OF THE REPLY WAS NOT INTENTIONAL BUT DUE TO THE REASONS CITED ABOVE. THE ASSESSEE VIDE REPLY DATED 23/4/2015 ALSO FURNISHED HIS PAN DETAILS, DETAILS OF JURIS DICTION AND SUBMITTED THAT THE INCOME TAX RETURNS FOR ASSESSMENT YEARS 2013 - 14 AND 2014 - 15 WERE FILED ONLINE. THE REPLIES FILED BY THE ASSESSEE, DATED 23/4/2015 AND 23/9/2015 ARE PLACED AT PAGES 2 & 4 OF THE PAPER BOOK. IT IS AN ADMITTED FACT THAT THERE WAS DELAY IN RESPONDING TO THE NOTICE ISSUED BY THE DEPARTMENT UNDER SECTION 133(6) OF THE ACT, BUT THE REASON FOR THE DELAY, AS CLARIFIED BY THE ASSESSEE VIDE HIS REPLIES DATED 23/4/2015 AND 23/9/2015, IS QUITE REASONABLE AND THEREFORE, ONLY FOR THE REASO N OF DELAY IN FILING OF THE INFORMATION, THE PENALTY LEVIED UNDER SECTION 272A(2)(C) OF THE ACT IS NOT ITA NO.764/LKW/2017 PAGE 4 OF 4 JUSTIFIABLE IN THE EYES OF LAW. WE, THEREFORE, FIND NO JUSTIFICATION IN IMPOSING THE PENALTY. ACCORDINGLY, WE ORDER DELETION OF PENALTY OF RS.40,400/ - LEVIED UNDER SECTION 272A(2)(C) OF THE ACT. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03 / 0 5 /201 9 . SD/ - SD/ - [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 03 /0 5 / 201 9 JJ: 3004 CO PY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR