M/s Shree Brindaban Rice Mill, Uttar Dinajpur V. DCIT, CC-XXVII, KOLKATA, Kolkata

ITA 799/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 1032 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 26-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBASH AGARWAL SHR
• Assessee Lawyers: PASS KOLKATA
• Keywords: Reasonable cause; Non compliance; Condonation of delay
• Section: 143(3); 142(1); 144

Judgement Text

, D , IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.799 & 805/KOL/2016 ASSESSMENT YEARS:2006-07 & 2012-13 M/S SHREE BRINDABAN RICE MILL, BANGALBARI, UTTAR DINAJPUR [ PAN NO.AAVFS 8631 E ] / V/S . DCIT, CENTRAL CIRCLE- XXVII, AAYAKAR BHAWAN, PURVA, 110, SHANTI PALLI, E.M. BY- PASS, KOLKATA-107 /APPELLANT .. /RESPONDENT /BY ASSESSEE SHRI SUBASH AGARWAL, ADVOCATE ! /BY REVENUE SHRI ARINDAM BHTTACHERJEE, ADDL. CIT-DR /DATE OF HEARING 02-11-2017 /DATE OF PRONOUNCEMENT 10-11-2017 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- BOTH APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST T HE COMMON ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATA DA TED 15.02.2016. ASSESSMENTS WERE FRAMED BY DCIT, CC-XXVII, KOLKATA U/S 153A/143 (3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HI S ORDERS DATED 27.03.2014 FOR ASSESSMENT YEARS 2006-07 AND 2012-13. PENALTY LEVIE D BY ASSESSING OFFICER U/S 271(1)(B) OF THE ACT VIDE HIS ORDER DATE 15.09.2014 . SHRI SUBASH AGARWAL, LD. ADVOCATE APPEARED ON BEHAL F OF ASSESSEE AND SHRI ARINDAM BHATTACHERJEE, LD. DEPARTMENTAL REPRESENTATIVE APPE ARED ON BEHALF OF REVENUE. ITA NO.799 & 805/KOL/2016 A.YS . 06-07 & 12-13 M/S SHREE BRINDABAN RICE MILL VS. DCIT , CC-XXVII, KOL PAGE 2 2. BOTH THE APPEALS ARE HEARD TOGETHER AND ARE BEIN G DISPOSED OF BY WAY OF COMMON ORDER AS THE FACTS AND CIRCUMSTANCES IN BOTH THE APPEALS ARE IDENTICAL. WE FIRST TAKE UP THE APPEAL IN ITA NO. 799/KOL/2016 RELATING TO A.Y. 2006-07 AS LEAD CASE. 3. THE GROUND AS RAISED BY THE ASSESSEE READS AS UN DER:- 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY TO THE TUNE OF RS.30,000/- IMPOSED BY THE AO U/S 271(1)(B) OF THE ACT. 2. FOR THAT THE LD. CIT(A) OUGHT TO HAVE DELETED TH E ENTIRE PENALTY OF RS.30,000/- IMPOSED U/S 271(1)(B) SINCE THE ASSESSE E WAS PREVENTED BY REASONABLE CAUSE FOR NON APPEARANCE DURING THE COUR SE OF ASSESSMENT PROCEEDING. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE ALL OR ANY OF THE GROUNDS OF APPEAL. 4. THE ONLY ISSUE RAISED BY THE ASSESSEE IN THIS AP PEAL IS THAT LD CIT(A) ERRED IN CONFIRMING THE PENALTY ORDER OF AO U/S 271(1)(B) OF THE ACT. 5. BRIEFLY, THE FACTS ARE THAT THE ASSESSEE IS A PA RTNERSHIP FIRM AND ENGAGED IN THE BUSINESS OF RICE AND THE FLOUR MILLING, SUPPLY OF E SSENTIAL COMMODITIES TO GOVERNMENT OF WEST BENGAL. THE ASSESSING OFFICER DURING THE C OURSE OF ASSESSMENT PROCEEDINGS U/S 153A/143(3) OF THE ACT ISSUED NOTICES U/S 142(1 ) OF THE ACT ON VARIOUS DATES BUT THE ASSESSEE FAILED TO COMPLY THE SAME. THE NECESSA RY DETAILS STAND AS UNDER. S.NO. DATE PARTICULARS REMARKS 1. 16.4.2013 NOTICE ISSUED U/S 142(1) COM PLIANCE BY THE ASSESSEE 2. 26.6.2013 NOTICE ISSUED U/S 142(1) NON-COMPLIAN CE BY THE ASSESSEE IN THIS NOTICE THE HEARING DATE WAS FIXED ON 8.07.2 013 BUT THE REPLY WAS FILED LATE I.E. 24.12.2013 3. 1.7.2013 NOTICE ISSUED U/S 142(1) NON-COMPLIAN CE BY THE ASSESSEE IN THIS NOTICE THE HEARING DATE WAS FIXED ON 12.07. 2013 BUT THE REPLY WAS FILED LATE I.E. 8.1.2014 4. 13.12.2013 NOTICE ISSUED U/S 142(1)NON-COMPLIANCE BY THE ASSESSEE IN THIS NOTICE THE HEARING DATE WAS FIXED ON 20.12. 2013 BUT THE REPLY WAS FILED LATE I.E. 21.1.2014 IN VIEW OF ABOVE, THE AO DURING ASSESSMENT PROCEEDI NGS INITIATED PENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT. FINALLY, THE AO AFTER CON SIDERING THE REPLY OF THE ASSESSEE ITA NO.799 & 805/KOL/2016 A.YS . 06-07 & 12-13 M/S SHREE BRINDABAN RICE MILL VS. DCIT , CC-XXVII, KOL PAGE 3 IMPOSED THE PENALTY FOR RS.30,000/- FOR ALL THE DEF AULTS COMMITTED BY THE ASSESSEE AS DISCUSSED ABOVE. 6. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT THE HEALTH CONDITI ON OF ONE OF THE PARTNER OF THE FIRM WAS VERY CRITICAL, THEREFORE THE COMPLIANCES COULD NOT MADE. THE ASSESSEE IN SUPPORT OF ITS CLAIM HAS ALSO PRODUCED THE COPY OF MEDICAL CERTIFICATES. THE ASSESSEE IN SUPPORT OF ITS CLAIM HAS ALSO RELIED ON THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF HINDUSTAN STEEL LIMITED V. STATE OF ORISSA REPORTED IN 83 ITR 26(SC). HOWEVER, LD. CIT(A) DISREGARDED THE CONTENTION OF THE ASSESSEE A ND CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER:- 5. DECISION: THE APPELLANT HAS FILED THREE GROUNDS OF APPEAL BUT ALL GROUNDS ARE MAINLY REGARDING IMPOSITION OF PENALTY U/S. 271(1)(B) OF THE ACT. IN VIEW OF THIS THE MATTER IS DISCUSSED WITH THE LD. A/R AND ACCORDINGLY ALL THE GROUNDS AR E TAKEN UP TOGETHER FOR ADJUDICATION. THE LD. AUTHORIZED REPRESENTATIVE OF THE APPELLANT APPEARED ON 10.02.2016 AND CHALLENGED THE IMPOSITION OF PENALTY U/S. 271(1)(B) OF THE ACT, ON THE GROUND THAT THE AM WAS ALREADY COMPLETED ON 28.03.2 014 BUT PENALTY ORDER U/S. 271(1)(B) OF THE ACT IS PASSED ON 15.09.2014 AND TH EREFORE THE AO IS NOT JUSTIFIED. IN COURSE OF DISCUSSION IT IS EXPLAINED AS TO WHY PENA LTY PROCEEDING IS INITIATED AT THE TIME OF THE COMPLETION OF ASSESSMENT AND THE PENALT Y PROCEEDING HAS TO E COMPLETED WITH PRESCRIBED TIME PERIOD. THEN THE LD A/R REFERR ED TO THE ILLNESS OF SHRI RANJIT KUMR PAUL, A MEMBER OF THE FAMILY AND ARGUED THAT S INCE SHIR RANJIT KUMAR PAUL WAS NOT WELL, THERE WERE NON COMPLIANCES IN RESPONS E TO THE NOTICES U/S. 142(1) OF THE ACT DURING ASSESSMENT PROCEEDING. THIS EXPLANATION HAS NOT BEEN SUBMITTED TILL DATE. THE COPY OF DISCHARGE SUMMARY OF SHRI RANJIT KUMAR PAUL SHOWS THAT HE WAS OPERATED IN APPOLLO HOSPITAL ON 20.5.2011 AND DULY DISCHARGED ON 06.06.2011. LATER ON HE WAS HOSPITALIZED FOR TWO DAYS IN FEBRUARY/MAR CH, 2013. 5.1 THE PENALTY U/S 271(1)(B) OF THE ACT IS IMPOSED ON THE ASSESSEE FOR THE NONCOMPLIANCE TO THE NOTICES ISSUED U/S. 142(1) OF THE ACT ISSUED ON 26.06.2013, 01.07.2013 AND 13.12.2013 WHEREIN REQUEST WAS MADE TO THE SE TO APPEAR ON 08.07.2013, 12.07.2013 AND 20.02.2013. REFERENCE IS MADE TO THE OPERATION OF SHRI PAUL IN 2011 AND TWO DAYS HOSPITALIZATION IN FEBRUA RY/MARCH 2013. 5.2 IT IS SEEN THAT SHRI RANJIT KUMAR PAUL WAS NOT IN THE HOSPITAL DURING THE PERIOD WHEN NON-COMPLIANCE TOOK PLACE. IT IS ALSO SEEN THA T THE APPELLANT, BESIDES NOT INFORMING THE ASSESSING OFFICER ABOUT THE SAID MEDI CAL REASON DURING THE ASSESSMENT PROCEEDING OR SUBSEQUENTLY DURING THE PENALTY PROCE EDINGS, DID NOT MENTION A WORD ABOUT IT AT THE TIME OF THE FILING OF APPEAL OR EVE N LATER TILL 10.02.2016. THE APPEAL IN THIS CASE WAS FILED ON 14.11.2014. EVEN AFTER THAT THE APPELLANT DID NOT REFER TO THIS AS THE REASONS FOR THE NON-COMPLIANCE DURING THE ASSES SMENT PROCEEDING WHICH RESULTED INTO THE INITIATION AND SUBSEQUENTLY IMPOSITION OF PENALTY U/S 271(1)(B) OF THE ACT. THIS IS NEITHER REFERRED IN THE GROUNDS OF APPEAL NOR IN THE STATEMENT OF FACTS. ONLY DURING THE COURSE OF THE INSTANT APPEAL PROCEEDING I.E. ON 10.02.2014 THE APPELLANT HAS REFERRED TO THE SAID EXCUSE REGARDING ILLNESS OF A MEMBER OF THE FAMILY DUE TO WHICH ITA NO.799 & 805/KOL/2016 A.YS . 06-07 & 12-13 M/S SHREE BRINDABAN RICE MILL VS. DCIT , CC-XXVII, KOL PAGE 4 THERE WERE NON-COMPLIANCES BUT THE A/R OF THE APPEL LANT FAILED TO EXPLAINS TO HOW DID IT STOP THE APPELLANTS LD A/R FROM APPEARING BEFOR E THE ASSESSING OFFICER. 5.3 THE LD. A/R SUBMITTED THAT DURING THE COURSE O F PENALTY PROCEEDINGS U/S. 271(1)(B), THE A/R OF THE ASSESSEE FILED A BONAFIDE SUBMISSION EXPLAINING THE REASON FOR NON-APPEARANCE AND ALSO REQUESTED FOR THE DROPP ING THE PENALTY PROCEEDING U/S. 271(1)(B) OF THE ACT. IT IS PERTINENT TO MENTION TH AT THE REFERRED SUBMISSION DT. 23.05.2014 DOES NOT MENTION A WORD ABOUT THE ILLNES S OF SHRI RANJIT KUMAR PAUL. THE AO HAS DULY REPRODUCED THE ENTIRE SUBMISSION IN THE RELEVANT PENALTY ORDER U/S 271(1)(B) OF THE ACT. THE SAID SUBMISSION OF THE LD . A/R DT. 23.05.2014 IS REPRODUCED BELOW, .. I HAVE BEEN ALLEGED TO HAVE FAILED TO RESPOND ON FEW OCCASIONS ON THE GIVEN DATES AS PER YOUR NOTICE SERVED U/S 142(1)/14 3(2) FOR A.Y 2006-07 TO AY 2006-07 TO AY 2012-13, HOWEVER, I HAD NO INTENTI ONS TO DEFY OR DISOBEY THE ORDER. FURTHER IT IS ALSO A MATTER OF FACT THAT NO PENALTY NOTICE U/S. 271(1)(B) WAS SERVED FROM YOUR END DURING THE PENDENCY OF ASS ESSMENT PROCEEDINGS AND THE SAME WAS SERVED ONLY AT THE TIME OF COMPLETION OF ASSESSMENT U/S. 153A/143(3), THAT IS ON 28.03.2014, HENCE THE ALLEG ED OFFENCE HAS ALREADY BEEN EXONERATED BY YOUR HONOUR AND THEREFORE NO FUR THER ACTION SHALL BE SUSTAINED IN THE EYE OF LAW. HENCE, I REQUEST YOUR HONOUR THAT THE PENALTY PROCEEDINGS U/S. 271(1)(B) FOR ASSESSMENT YEAR Z200 6-07 TO AY 2012-13 MAY PLEASE BE DROPPED FOR THE SAME OF JUSTICE. IT IS APPARENT THAT NO VALID REASON IS MENTIONED AN D THE ILLNESS OF SHRI PAUL IS CERTAINLY NOT MENTIONED AS THE REASON FOR THE REFER RED NON-COMPLIANCES OF THE NOTICES U/S. 142(1) OF THE ACT. 5.4 THE LD A/R CONTINUED TO ARGUE THAT SHRI RANJIT KUMAR PAULS ILLNESS HAD PREVENTED THEM FROM COMPLYING WITH THE NOTICES U/S. 142(1) OF THE ACT. HOWEVER, IT IS SEEN THAT SHRI RANJIT KUMAR PAUL WAS NOT REPRESENTI NG BEFORE THE DEPARTMENT OR FOR THAT MATTER ASSOCIATED WITH ANY INCOME TAX PROCEEDI NG. THE LD. A/R AGREED WITH THIS BUT HE INSISTED THAT THE ILLNESS OF SHRI PAUL WAS T HE ONLY REASON. IT IS SEEN THAT THE APPELLANT HAS MADE A PLEA WHILE REQUESTING FOR THE CONDONATION OF DELAY IN THE FILING OF APPEAL. AT THAT POINT OF TIME THE APPELLANT HAS SUBMITTED THAT THE COST ACCOUNTANT SHRI GURUDAS DEY WAS ON LEAVE SO THE DELAY IN THE F ILING OF APPEAL. SHRI GRUDAS DEY IS THE LD. A/R OF THE APPELLANT IN THIS CASE. THUS IT IS SEEN THAT THE SAID EXCUSE, THAT ONE PERSON IN FAMILY WAS NOT WELL SO NO COMPLIANCE, IS NOT CONSIDERED VALID. IN COURSE OF APPEAL PROCEEDING, THE LD A/R FAILED TO EXPLAIN AS TO WHY THE ILLNESS OF SHRI RANJIT KUMAR PAUL, WHICH IS THE ONLY EXCUSE FOR NON-COMPLI ANCE, WAS NOT BROUGHT TO THE KNOWLEDGE OF THE ASSESSING OFFICER DURING ASSESSMEN T/PENALTY PROCEEDING OR LATER, AT THE TIME THE FILING OF INSTANT APPEAL, OR FOR THAT MATTER TILL 10.02.2016 AND SECONDLY, HOW DID HE REFERRED ILLNESS PREVENTED THE APPELLANT IN COMPLYING THROUGH ANY AUTHORIZED REPRESENTATIVE? 5.5 THE LD A/R COULD NOT REPLY TO THE ABOVE BUT ARG UED REPEATEDLY THAT DUE TO THE ILLNESS OF SHRI RANJIT KUMAR PAUL, THE NON-COMPLIAN CES TOOK PLACE. THIS IS NO REASONABLE EXPLANATION. THE A/R WAS ALSO REQUESTED TO INFORM WHETHER ALL ACTIVITIES OF THE APPELLANT STOPPED DUE TO THE STATED EXCUSE O R ONLY THE COMPLIANCE BEFORE THE ASSESSING OFFICER GOT AFFECTED. THE A/R DID NOT REP LY. THE CASE LAW, (HINDUSTAN STEEL LTD. VS. STATE OF ORISSA 83 ITR 26) CITED BY THE AP PELLANT, HAS BEEN REFERRED BUT THAT IS NOT APPLICABLE IN THE INSTANT APPEAL MATTER. THUS I T IS SEEN THAT THE ASSESSEE HAD DELIBERATELY NOT COMPLIED WITH THE NOTICES DULY ISS UED BY THE AO U/S 142(1) OF THE ACT. LATER ON, THE APPELLANT HAS TAKEN A PLEA REGARDING ILLNESS OF ONE OF THE FAMILY MEMBER ITA NO.799 & 805/KOL/2016 A.YS . 06-07 & 12-13 M/S SHREE BRINDABAN RICE MILL VS. DCIT , CC-XXVII, KOL PAGE 5 WHICH IS AN APPARENT CASE OF AFTERTHOUGHT. IT IS AL SO SEEN THAT THE REFERRED NON- COMPLIANCES AFFECTED THE ASSESSMENT PROCEEDING AND THE SAME GETS REFLECTED IN THE OBSERVATION, IN THIS REGARD, AS MADE IN THE RELEVAN T ASSESSMENT ORDER. IN VIEW OF THAT, THE INSTANT PENALTY PROCEEDING WAS INITIATED. EVERY TIME THE HEARING IS FIXED, THE ASSESSING OFFICER HAS TO PREPARE AND THEN WITHOUT A NY PRIOR INTIMATION OR REQUEST FOR ADJOURNMENT, THE ASSESSEE DOES NOT APPEAR. EVEN AFT ERWARDS THE ASSESSEE DOES NOT SUBMIT ANY EXPLANATION. THIS TYPE OF DELIBERATE NON -COMPLIANCE, AS DONE BY THE ASSESSEE IN THIS CASE, ADVERSELY AFFECTS THE PROCES S OF ASSESSMENT AND THE COMPLETION OF THE IMPORTANT ASSESSMENT PROCEEDING GOT DELAYED. . A DISCUSSED THE EXPLANATIONS OF THE LD. A/R DT. 10.02.2016 DOES NOT SUBSTANTIATE TH E CLAIMS AS MADE IN THE GROUNDS OF APPEAL. THUS IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER WAS JUSTIFIED IN IMPOSING PENALTY U/S. 271(1)(B) OF THE ACT AND LEVY RS.30,000/- FOR NON-COMPLIANCE OF NOTICES U/S. 142(1) OF THE ACT. T HEREFORE APPEAL ON THE REFERRED GROUND IS DISMISSED. AGGRIEVED BY THE ABOVE FINDING OF LD. CIT(A), THE A SSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. AR BEFORE US SUBMITTED THAT ALL THE QUER IES RAISED BY THE AO DURING ASSESSMENT PROCEEDINGS WERE DULY REPLIED BY THE ASS ESSEE AS EVIDENT FROM THE ORDER OF AO PARAGRAPH NUMBER 8 WHICH READS AS UNDER:- 8.0 IN COURSE OF ASSESSMENT PROCEEDINGS FURTHER QU ERIES WAS RAISED AGAINST WHICH REPLIES HAVE BEEN FILED, LOOKED INTO AND PLAC ED ON RECORD. ACCORDINGLY THE LD AR SUBMITTED THAT SUBSTANTIAL CO MPLIANCES WERE MADE BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S. THEREFORE NO PENALTY IN THE INSTANT CASE IS CALLED FOR. THE LD AR IN THIS REGAR D HAS RELIED ON THE ORDER OF HONBLE ITAT IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUS T VS. ASSISTANT DIRECTOR OF INCOME TAX REPORTED IN 115 TTJ (DEL) 419. THE RELEVANT EXTRAC T READS AS UNDER:- 2.5 WE ALSO FIND THAT FINALLY THE ORDER WAS PASSED UNDE R S. 143(3) AND NOT UNDER S. 144 OF THE ACT. THIS MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPL IANCE AND THE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE AO. THEREFORE , IN SUCH CIRCUMSTANCES, THERE COULD HAVE BEEN NO REASON TO COME TO THE CONC LUSION THAT THE DEFAULT WAS WILLFUL. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE ME DICAL CERTIFICATES WERE NOT PRODUCED BEFORE THE AO TO JUSTIFY THAT THERE WAS RE ASONABLE CAUSE WHICH PREVENTED THE ASSESSEE TO RESPONSE THE NOTICES ISSUED UNDER SECTI ON 142(1) OF THE ACT. THE LD. DR ITA NO.799 & 805/KOL/2016 A.YS . 06-07 & 12-13 M/S SHREE BRINDABAN RICE MILL VS. DCIT , CC-XXVII, KOL PAGE 6 ALSO CONTENDED THAT THE ASSESSEE IN THE INSTANT CAS E WAS INTENTIONALLY DELAYING THE PROCEEDINGS TO TAKE THE ASSESSMENT AT THE FAG-END I N ORDER TO DIVERT THE ATTENTION OF THE AO. HE VEHEMENTLY SUPPORTED THE ORDER OF LOWER AUTH ORITIES. 8. IN REJOINDER, LD AR SUBMITTED THAT ALL THE MEDIC ALS BILLS WERE DULY PRODUCED BEFORE THE LD CIT(A) AND HE GOT CO-TERMINUS POWER T O VERIFY THE SAME BUT HE FAILED TO DO SO. THE LD AR ALSO SUBMITTED THAT THE PENALTY CA NNOT BE IMPOSED ON ACCOUNT OF TECHNICAL GROUND. IN THIS REGARD THE LEARNED AR REL IED ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF HINDUSTAN STEEL (SUPRA) . 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUD ING THE JUDICIAL PRONOUNCEMENTS CITED AND PLACED RELIANCE UPON. AT THE OUTSET IT WA S OBSERVED THAT IN THE IDENTICAL FACTS AND CIRCUMSTANCES THE HONBLE DELHI TRIBUNAL HAS DE CIDED THE ISSUE IN FAVOUR OF ASSESSEE IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST (SUPRA) BY OBSERVING THAT THE ASSESSMENT WAS FRAMED UNDER S ECTION 143(3) OF THE ACT WHICH PROVES THAT SUBSTANTIAL COMPLIANCES WERE MADE BY TH E ASSESSEE. THUS, IT CANNOT BE HELD THAT THE DEFAULT COMMITTED BY THE ASSESSEE WAS WILLFUL. THUS, WE ARE INCLINED NOT TO UPHOLD THE ORDER OF LOWER AUTHORITIES. 9.1 SIMILARLY, WE ALSO FIND THAT THE HONBLE APEX C OURT IN THE CASE OF HINDUSTAN STEEL (SUPRA) HAS HELD THAT THE PENALTY SHOULD NOT BE IMPOSED UN LESS THE ASSESSEE ACTED DELIBERATELY. THE RELEVANT EXTRACT READS AS UNDER : OBLIGATION IS THE RESULT OF A QUASI- CRIMINAL PROCE EDING, AND PENALTY WILL NOT ORDINARILY BE IMPOSED UNLESS THE PARTY OBLIGED, EIT HER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DIS HONEST, OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATION. PENALTY WILL NOT ALSO BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. WHETHER PENALTY SHOULD BE IMPOSED FOR FAILURE TO PERFORM A STATUTORY OBLIGATION IS A MATTER OF DISCRETION OF THE AUTHORI TY TO BE EXERCISED JUDICIALLY AND ON A CONSIDERATION OF ALL THE RELEVANT CIRCUMSTANCES. EV EN IF A MINIMUM PENALTY IS PRESCRIBED, THE AUTHORITY COMPETENT TO IMPOSE THE P ENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY, WHEN THERE IS A TECHNICAL OR VEN IAL BREACH OF THE PROVISIONS OF THE ACT OR WHERE THE BREACH FLOWS FROM A BONA FIDE BELI EF THAT THE OFFENDER IS NOT LIABLE TO ACT IN THE MANNER PRESCRIBED BY THE STATUTE. AS WE HAVE ALREADY DECIDED THE ISSUE IN FAVOUR OF A SSESSEE IN VIEW OF THE ABOVE FACTS, THEREFORE WE ARE NOT INCLINED TO COMMENT ON THE CON TENTIONS RAISED BY THE LD DR AT THE TIME OF HEARING AS WELL AS OBSERVATIONS MADE BY THE LD CIT(A) IN HIS ORDER. ITA NO.799 & 805/KOL/2016 A.YS . 06-07 & 12-13 M/S SHREE BRINDABAN RICE MILL VS. DCIT , CC-XXVII, KOL PAGE 7 RESPECTFULLY FOLLOWING THE AFORESAID JUDGMENTS WE R EVERSE THE ORDER OF AUTHORITIES BELOW. ACCORDINGLY, AO IS DIRECTED TO DELETE THE SA ME. 10. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. COMING TO ITA NO.805/KOL/2016 FOR A.YS. 2012-13 . 11. IN THIS APPEAL, SINCE THE FACTS ARE EXACTLY IDE NTICAL, BOTH THE PARTIES ARE AGREED WHATEVER VIEW TAKEN IN THE ABOVE APPEAL (ITA NO.799 /KOL/2016) MAY BE TAKEN IN THIS APPEALS ALSO, WE HOLD ACCORDINGLY. 12. IN THE RESULT, APPEAL OF ASSESSEE STANDS ALLOWE D. 13. IN COMBINE RESULT, BOTH THE APPEALS OF ASSESSEE ARE TREATED AS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 10/11/2017 SD/- SD/- ( ( !) ( !) (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP, SR.P.S * - 10/11/2017 / KOLKATA / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S SHREE BRINDABAN RICE MILL, BANGALBARI , UTTAR DINAJPUR 2. ! /REVENUE-DCIT, CC-XXVII, AAYAKAR BHAWAN PURVA,110, SHANTI PALLI, E.M. BY-PASS, KOLKATA -107 3. - . / CONCERNED CIT 4. . - / CIT (A) 5. / ((- , - / DR, ITAT, KOLKATA 6. 3 / GUARD FILE. BY ORDER/ , /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO -,