Suyojit Infrastructure Ltd., Nashik V. ACIT, Cir.-II, Nashik

ITA 813/PUN/2011

• Counselvise Citation: 81324514 RSA 2011
• Duration Of Justice: 1 year(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-06-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 13-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAPTHUAMA
• Section: 143(3); 142(1)

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. PADVEKAR JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO.813/PN/2011 (ASSTT.YEAR : 2005-06) SUYOJIT INFRASTRUCTURE LTD. F-3, CROWN COMMERCIAL COMPLEX, OPP : RAJIV GANDHI BHAVAN, SHARANPUR ROAD, NASHIK. .. APPELLANT PAN NO.AAFCS 1381H VS. ACIT CIRCLE-II, NASHIK .. RESPONDENT APPELLANT BY : SRI PRAMOD S. SHINGTE RESPONDENT BY : MS. KAPTHUAMA DATE OF HEARING : 28-06-2012 DATE OF PRONOUNCEMENT : 03-07-2012 ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 8-3-2011 OF THE CIT(A)-II, NASHIK RELATING TO ASSESSMENT YEA R 2005-06. 2. THE ASSESSEE IN ITS ONLY EFFECTIVE GROUND OF APP EAL HAS CHALLENGED THE ORDER OF THE LEARNED CIT(A) IN CONFIRMING THE PENALTY OF RS. 20,000/- LEVIED BY THE AO U/S. 271(1)(B) OF THE I.T. ACT. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE IS A LIMITED COMPANY ENGAGED IN THE BUSINESS OF CIVIL CONSTRUCTION. AF TER THE CASE WAS SELECTED FOR SCRUTINY THE AO ISSUED NOTICES U/S. 142(1) ON 15-05 -2007 AND 20-08-2007 ASKING FOR SPECIFIC DETAILS. THE DATES OF COMPLIANCES WER E FIXED ON 31-05-2007 AND 29- 08-2007 RESPECTIVELY. IN ABSENCE OF ANY COMPLIANCE MADE BY THE ASSESSEE THE AO 2 LEVIED PENALTY OF RS. 10,000/- FOR EACH DEFAULT TOT ALLING TO RS. 20,000/- FOR NON- COMPLIANCE OF NOTICE ISSUED U/S. 142(1) OF THE ACT. 4. BEFORE THE CIT(A) IT WAS SUBMITTED THAT THE AO WHO ISSUED THE NOTICE U/S. 142(1) ON 15-05-2007 WAS TRANSFERRED IMMEDIATELY AF TER THE ISSUE OF NOTICE. AS REGARDS THE NOTICE DATED 20-08-2007 FIXING THE DATE FOR COMPLIANCE ON 29-09- 2007,IT WAS SUBMITTED THAT THE ACTUAL COMPLIANCE OF THE NOTICE WAS MADE ON 05-09- 2007 BY FURNISHING THE INFORMATION AS ASKED FOR BY THE AO. IT WAS ALSO ARGUED THAT THE JURISDICTION OVER THE CASE WAS TRANSFERRED FROM ACIT CIRCLE-I, NASHIK TO JCIT RANGE-1, NASHIK AND ASSESSMENT HAS BEEN COMPLETED U /S.143(3). IT WAS ACCORDINGLY SUBMITTED THAT THE PENALTY LEVIED BY TH E AO U/S. 271(1)(B) OF THE I.T. ACT SHOULD BE DELETED. 5. HOWEVER, THE LEARNED CIT(A) WAS NOT CONVINCED WI TH THE ARGUMENTS ADVANCED BY THE ASSESSEE AND UPHELD THE PENALTY LEV IED BY THE AO. WHILE DOING SO, HE HELD THAT THE ASSESSEE COULD NOT GIVE ANY RE ASONABLE CAUSE FOR NOT COMPLYING TO THE STATUTORY NOTICE ISSUED BY THE AO. AGGRIEVE D WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US. 6. THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE SAME ARGUMENTS AS MADE BEFORE THE CIT(A). HE SUBMITTED THAT IN THE ORIGIN AL NOTICE ISSUED BY THE AO THERE WERE 44 ITEMS IN THE QUESTIONNAIRE. HE SUBMITTED T HAT AFTER THE ISSUE OF THE FIRST NOTICE THE AO WAS TRANSFERRED AND THE JURISDICTION OF THE CASE WAS ALSO TRANSFERRED FROM ACIT CIRCLE-1, NASHIK TO JCIT RANGE-2, NASHIK. HE SUBMITTED THAT ALTHOUGH THE ASSESSEE COULD NOT COMPLY TO THE NOTICE ISSUED BY THE AO ON 20-8-2007 FIXING THE DATE OF HEARING ON 29-08-2008, THE ASSESSEE COM PLIED TO THE SAID NOTICE ON 05- 09-2007. THEREAFTER, THE ASSESSMENT WAS COMPLETED U/S.143(3) OF THE I.T. ACT. HE 3 ACCORDINGLY SUBMITTED THAT A LENIENT VIEW MAY BE TA KEN AND THE PENALTY LEVIED BY THE AO AND UPHELD BY THE CIT(A) SHOULD BE DELETED. 6.1. THE LEARNED DR ON THE OTHER HAND HEAVILY RELIE D ON THE ORDER OF THE AO AND THE CIT(A). 7. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PERUSED THE ORDERS OF THE AO AND THE LEARNED CIT(A) AND THE PAP ER BOOK FILED ON BEHALF OF THE ASSESSEE. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE DID NOT COMPLY TO THE STATUTORY NOTICES ISSUE BY THE AO ON 15-05-2007 AND 20-08-2007 FIXING THE DATE OF HEARING ON 31-05-2007 AND 29-08-2007 RESPECTIVELY. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSEE COMPLIED TO THE SECOND N OTICE ON 05-09-2007, A FACT BROUGHT ON RECORD BY THE CIT(A) AT PARA 5 OF HIS OR DER AND NOT DISPUTED BY THE REVENUE. WE ALSO FIND THE AO IN THE ORDER PASSED U /S. 143(3) ON 28-12-2007 AT PAGE1 OF THE ORDER HAS MENTIONED AS UNDER (PAGE 11 OF THE PAPER BOOK) : IN RESPONSE TO VARIOUS NOTICES U/S.143(2)/ 142(1) SRI S.S. MUTHA, C.A. AND SRI ANIL JAIN, C.A. SRI SHAILESH CHANDOKAR, ACCOUNT ANT AND SRI C.R. BORALE, ACCOUNTANT APPEARED FROM TIME TO TIME AND FURNISHED THE DETAILS CALLED FOR. THUS ALTHOUGH THE ASSESSEE HAS NOT COMPLIED TO THE INITIAL TWO NOTICES, WE FIND THE ASSESSEE SUBSEQUENTLY HAS COOPERATED WITH THE DEPAR TMENT FOR COMPLETION OF THE ASSESSMENT U/S.143(3). WE FURTHER FIND MERIT IN TH E SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE AO IN THE ORIGINA L NOTICE ISSUED U/S.142(1) ON 15- 05-2007 HAD ISSUED A QUESTIONNAIRE WHICH CONTAINS 4 4 ITEMS TO BE COMPLIED WITH WHICH COULD NOT BE COMPILED IN TIME. FURTHER, THE AO WAS TRANSFERRED AND THEREAFTER THE JURISDICTION WAS ALSO TRANSFERRED. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND CONSIDERING THE FACT THAT THE ASSESSEE HAS SUBSEQUENTLY COOPERATED WITH THE DEPARTMENT AND THE ASSESSMENT H AS BEEN COMPLETED U/S.143(3) OF THE I.T. ACT, WE ARE OF THE CONSIDERED OPINION T HAT THIS IS NOT A FIT CASE FOR LEVY 4 OF PENALTY U/S. 271(1)(B) OF I.T. ACT. IN THIS VIE W OF THE MATTER, WE SET-ASIDE THE ORDER OF THE LEARNED CIT(A) AND DIRECT THE AO TO DE LETE THE PENALTY LEVIED U/S. 271(1)(B) OF THE I.T. ACT. THE GROUND RAISED BY TH E ASSESSEE IS ACCORDINGLY ALLOWED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS THE DAY OF 3 RD JULY 2012 SD/- SD/- (R.S. PADVEKAR) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED: THE 3RD JULY 2012 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A) II, NASHIK 4. CIT CONCERNED 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCH, PUNE 5