Appeal details
Counselvise Citation
[2018] 119 COUNSELVISE.COM (IT) 0400 (ITAT-AMRITSAR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
9 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
27-11-2018
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Assessment Year
2016-2017
Appeal Filed On
09-02-2018
Judgement Text
IN THE INCOME TAX APPELLA TE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.80(ASR)/2018 ASSESSMENT YEAR:201 6-17 HARJIT SINGH CHAWLA, 2-D, SARAHABA NAGAR, LUDHIANA [PAN:AAQPC 4054N] VS. JOINT DIRECTOR OF INCOME TAX (INV.-1), LUDHIANA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. P.N.ARORA (LD. ADV.) RESPONDENT BY: SH. CHARAN DASS (LD. DR) DATE OF HEARING: 15.11.2018 DATE OF PRONOUNCEMENT: 27.11.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE/APP ELLANT, ON FEELING AGGRIEVED AGAINST THE ORDER DATED 28.11.201 7 PASSED BY THE LD. CIT(A)-2, AMRITSAR, U/S 250(6) OF THE I.T. ACT, 1961 (HEREINAFTER CALLED AS THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL. 1. THAT THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE ORDER OF LEARNED CIT(A) ARE BOTH AGAINST THE FACTS OF THE CASE AND A RE UNTENABLE IN LAW. 2. THAT THE LD JCIT (INVESTIGATION) LUDHIANA HAS GR OSSLY ERRED IN LEVYING PENALTY U/S 272A(1)(C) AT RS.10000/-. SIMILARLY THE WORTHY CIT(A) HAS ERRED IN CONFIRMING THE SAME. 3. THAT THE CIT(A) DID NOT APPRECIATE THAT S UMMON U/S 131 WAS NEVER SERVED ON THE ASSESSEE AS HE WAS OUT OF STATION ON THAT DA Y AND REQUEST FOR ADJOURNMENT WAS SUBMITTED. ITA NO.80/ASR/2018 (A.Y.2016-17) HARJIT SINGH CHAWLA, VS. JCIT 2 4. THAT THERE WAS NO DEFAULT AS ALLEGED BY THE WORTHY CIT(A). AS SUCH THE LD. CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE PENALTY ORDER. 5. THAT THE CIT(A) DID NOT APPRECIATE THAT ORD ER LEVYING PENALTY AT RS.10000/- BY JOINT DIRECTOR OF INCOME TAX, LUDHIANA IS ILLEGA L, INVALID, VOID ABINITIO AND THE SAME SHOULD HAVE BEEN CANCELLED BY THE CIT(A). 6. THAT THE LD CIT(A) DID NOT APPRECIATE THAT T HIS CASE DOES NOT FALL WITHIN THE MISCHIEF OF SECTION 272A(1)(C) AND AS SUCH THE PENA LTY LEVIED IS UNCALLED FOR AND THE SAME MAY BE CANCELLED. 3. THE BRIEF FACTS OF THE CASE ARE THAT ADIT(INV.)-2, LUDHIANA HAS ISSUED A SUMMON U/S 131(1) OF THE I.T. ACT, 1961 TO THE ASSESSEE ON 29.09.2015 AND FIXING THE CASE FOR HEARING ON 12.10.2015. ON 09. 10.2015, THE ASSESSEE SOUGHT ADJOURNMENT ON THE GROUND THAT THE COUNSEL OF T HE ASSESSEE WAS BUSY IN APPEAL BEFORE ITAT, AMRITSAR AND THEREFORE, P RAYED FOR ADJOURNMENT THE CASE TO 21.10.2015. ON 23.02.2016 THE SUMMONS AGAIN ISSUED FIXING THE CASE ON 01.03.2016, HOWEVER ON 27 TH FEB. 2016 SH. PREM NATH ARORA, ADVOCATE, THE COUNSEL OF THE ASSESSEE SOUGHT AN ADJOURNMENT BY MENTIONING THE REASON THAT ALL OF A SUDDEN, THE ASSESSEE HAS TO GO OU T OF STATION IN BUSINESS CONNECTION ON ACCOUNT OF SOME EMERGENCY AND PRAYED TO FIX THE CASE ON SOME OTHER DATE AFTER 15 TH MARCH, 2016. IN RESPONSE TO WHICH THE CASE WAS ADJOURNED ON 15 TH MARCH, 2016. ON 12 TH MARCH, 2016, SH. P.N. ARORA, THE LEARNED COUNSEL OF THE ASSESSEE AGAIN FILED LE TTER BY STATING THE REASON THAT HE IS BUSY IN CONNECTION WITH TIME BARRING CASES, THEREFORE, THE CASE MAY BE ADJOURNMENT AFTER THE 15TH APRIL, 2016 OR AS PER THE CONVENIENCE OF THE AUTHORITY. HOWEVER, IN VIEW OF THE AMPLE OPPORTUNITY GIVEN IN PAST, THE ADIT(INV.) HAD REJECTED THE PLEA OF THE ADJOURNMENT VIDE HIS OFFICE LETTER NO.1969 DATED 15.03.2016 AND HAS M ADE THE REFERENCE FOR IMPOSITION OF PENALTY U/S 272A(1)(C) OF THE ACT. FROM THE FINDING OF THE ADIT(INV.), IT WAS OBSERVED BY THE JDIT (INV) THAT TH E ASSESSEE VIOLATED THE PROVISIONS OF SEC.131(1) R.W.SEC. 272(1) (C) OF THE ACT A ND THEREFORE, LIABLE TO PENALTY OF RS.10,000/- FOR EACH DEFAULT. ITA NO.80/ASR/2018 (A.Y.2016-17) HARJIT SINGH CHAWLA, VS. JCIT 3 THE LD. JDIT(INV.) WHILE PASSING A PENALTY ORDER OBSER VED THAT FROM THE PERUSAL OF REPLY, IT IS EVIDENT THAT ASSESSEE HAD REM AINED SILENT OVER THE NON COMPLIANCE TO SUMMON ISSUED BY THE ADIT(INV.)-2, LUD HIANA AND NOR HE HAD GIVEN ANY REASONABLE CAUSE TO JUSTIFY OF HIS NON-A TTENDANCE ON THE SAID DATE. ON TWO OCCASIONS I.E., 1 ST MARCH, 2016 AND 15 TH MARCH, 2016, THE PERSONAL APPEARANCE OF THE ASSESSEE WAS REQUIRED, HOWEVER HE DELIBERATELY NOT COMPLIED THE SUMMONS, THEREFORE, IT IS A FIT CASE FO R IMPOSITION OF PENALTY U/S 272A(1) (C) OF THE ACT. ACCORDINGLY, THE JD IT(INV.) IMPOSED A PENALTY OF RS.10,000/-. THE PENALTY WAS CHALLENGED BEFORE THE LD. CIT(A) WHO AFFIRMED THE PENALTY ORDER BY OBSERVING THAT THE ASSESSEE HAD REMAIN ED SILENT OVER NON- COMPLIANCE OF SUMMONS ISSUED BY ADIT(INV.)-2, LUDHIANA A ND NO REASONABLE CAUSE WAS GIVEN AS TO WHY THE ASSESSEE DID NOT APPEAR IN PU RSUANCE TO SUMMONS ISSUED TO HIM BY ADIT(INV.)-2, LUDHIANA SEEKING HIS PERSONAL ATTENDANCE ON BOTH OCCASIONS. THE LD. CIT(A) WHILE AGREE ING WITH THE OBSERVATION OF THE ADIT(INV.)-2, LUDHIANA FOR NOT AT TENDING HIS OFFICE BY THE ASSESSEE JUSTIFIED AND UPHOLD THE ADDITION OF RS.10,000/- . 4. ON FEELING AGGRIEVED AGAINST THE ORDER, THE ASSESSE PRE FERRED THE INSTANT APPEAL. 5. THE CO-ORDINATE BENCH IN THE CASE OF SH. GURINDER SING H GILL VS. ITO, WARD-1, IN ITA NO.649(ASR)/2017 DT.16.08.2018 DEALT WITH THE SIMILAR AND IDENTICAL SITUATION AND DELETED THE PENALTY. THE OPE RATIVE PART OF THE ORDER IS REPRODUCED HEREIN BELOW. 3. THE CO-ORDINATE BENCH AT AMRITSAR, IN ITA NO.608(ASR)/2 016 IN THE CASE OF SUKHDEV SINGH VS. INCOME TAX OFFICER , VIDE ITS ORDER DATED 31.07.2017 DEALT WITH THE SIMILAR AND IDENTICAL SIT UATION AND DELETED THE PENALTY IMPOSED BY THE ASSESSING OFFICER AND AFFIRM ED BY THE LD. CIT(A). THE CONCLUDING PART OF THE ORDER IS REPRODUCED HEREIN B ELOW. ITA NO.80/ASR/2018 (A.Y.2016-17) HARJIT SINGH CHAWLA, VS. JCIT 4 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT FIRST NOTIC E U/S 143(2) WAS ISSUED ON 17.08.2010. THIS NOTICE REMAINED UNCO MPLIED WITH. THEN AGAIN, TWO NOTICES WERE ISSUES AND WHICH ALSO REMAINED UNCOMPLIED WITH, HOWEVER, ON 27.09.2010, T HE ASSESSEE APPEARED AND SOUGHT ADJOURNMENT AND THE CA SE WAS FIXED FOR 04.10.2010. THEN AGAIN ASSESSEE COULD NOT APPEAR. THE ASSESSING OFFICER COMPLETED THE ASSESSM ENT U/S 144 ON 15.12.2010. SIMULTANEOUSLY STARTED PENALTY PROCEEDINGS U/S 271(L)(B). IN THE MEANTIME ASSESSEE FILED APPEAL BEFORE LD. CIT(A) AND GOT SUBSTANTIAL RELIEF AND THE REVENUES APPEAL AGAINST LD. CIT(A)S ORDER WAS ALS O DISMISSED. AFTER THE RECEIPT OF TRIBUNAL ORDER, THE PENALTY CASE OF THE ASSESSEE WAS AGAIN STARTED AND WAS FIXED FOR HEARING ON 23.07.2015, AND PENALTY WAS IMPOSED ON 18.08.201 5. IN THE RENEWED PENALTY PROCEEDINGS ALSO THE ASSESSEE D ID NOT GET SUFFICIENT OPPORTUNITY TO DEFEND THE PENALTY. T HE PERIOD BETWEEN ISSUE OF FIRST NOTICE ON 17.08.2010 AND COM PLETION OF ASSESSMENT ON 15.12.2010 IS ALSO NOT A REASONABLE P ERIOD AND ASSESSEE CANNOT BE FASTENED WITH THE LIABILITY FOR NOT APPEARING SPECIFICALLY, IN VIEW OF THE FACT, THAT A SSESSEE IS AN UNEDUCATED PERSON AS IS APPARENT FROM HIS SIGNATURE S AND ALSO IN VIEW OF THE FACT THAT ASSESSEE LIVES IN A V ILLAGE NEAR AMRITSAR. WE FURTHER FIND THE ASSESSEE HAD GOT SUBS TANTIAL RELIEF FROM THE LD. CIT(A) AND WHICH WAS UPHELD BY HON'BLE TRIBUNAL ALSO. 7. IN VIEW OF THE ABOVE, THE APPEAL FILED BY ASSESS EE IS ALLOWED . WE HAVE PERUSED THE ORDER PASSED BY THE CO-ORDINATE BENCH AT AMRITSAR IN THE CASE OF SUKHDEV SINGH VS. ITO (SUPR A), AS THE FACTS OF THE INSTANT CASE ARE SIMILAR TO THE FACTS OF THE SAID C ASE DECIDED BY THE CO- ORDINATE BENCH AS MENTIONED ABOVE, THEREFORE, THE C ASE IS SQUARELY COVERED BY THE JUDGMENT OF THE CO-ORDINATE BENCH, HENCE, IN VIEW OF THE ABOVE DICTUM OF THE CO-ORDINATE BENCH, WE ARE INCLINED TO SET ASIDE THE ORDER PASSED BY THE LD. CIT(A) AND CONSEQUENTLY THE PENAL TY STANDS DISMISSED. 6. RESPECTFULLY FOLLOWING THE JUDGMENT PASSED BY THE CO-ORDINATE BENCH IN THE AFORESAID CASES AS WELL AS THE PECULIAR FACT AND CI RCUMSTANCES TO THE EFFECT THAT EACH AND EVERY SUMMON ISSUED BY THE ADIT(IN V.) FOR FIXING THE CASE FOR HEARING HAVE DULY BEEN REPLIED BY THE COUNSEL OF THE ASSESSEE AND ADJOURNMENT HAVE BEEN SOUGHT ON REASONABLE GROUNDS, SOM E HOW REQUEST ITA NO.80/ASR/2018 (A.Y.2016-17) HARJIT SINGH CHAWLA, VS. JCIT 5 FOR ADJOURNMENT OF CASE ON DATED 15.03.2016 WAS REJECT ED BY THE ADIT(INV.) ON THE GROUND THAT AMPLE OPPORTUNITIES HA VE BEEN GIVEN IN PAST, HOWEVER, AS SUBMITTED BY THE LD. COUNSEL THAT THE ASSEEE E IS 85 YRS OLD AND WAS UNABLE TO APPEAR PERSONALLY OR THROUGH HIS ADVOCATE DUE TO BONAFIDE REASONS AS STATED IN PENALTY ORDER ITSELF. THEREFORE, W ITHOUT GOING INTO THE CONTROVERSY WHICH HAS BEEN RAISED BY THE ASSESSEE THAT SUMMO N U/S 131 WAS NEVER BEEN SERVED, HOWEVER, LATER ON THE ASSESSEE COU LD NOT APPEAR BUT REPLIED THE SUMMONS IN WRITING, WE ARE INCLINED TO DEL ETE THE PENALTY AND HENCE, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 27.11.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED: 27.11.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) HARJIT SINGH CHAWLA, 2-D, SARAHABA NAGAR, LUDHIA NA (2) THE JOINT DIRECTOR OF INCOME TAX (INV.-1), LUDHIANA (3) THE CIT(A)-2, AMRITSAR (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER
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