M/S. Alliance Promoters Limited, Kanpur V. Assistant Commissioner of Income Tax, Range-VI, Kanpur

ITA 826/LKW/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8476 (ITAT-LUCKNOW)
• Duration Of Justice: 3 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 12-08-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 29-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH JAISWAL S HRI AJAY K
• Keywords: Condonation of delay; Set aside
• Section: 143(3); 142(1)

Judgement Text

I.T.A. NO.826/LKW/2017 ASSESSMENT YEAR:2011-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.826/LKW/2017 ASSESSMENT YEAR:2011-2012 M/S ALLIANCE PROMOTERS LTD., 24/4, THE MALL, KANPUR. PAN:AAFCA7641H VS. A.C.I.T., RANGE-VI, KANPUR. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF LEARNED CIT(A)-II, KANPUR DATED 08/03/2017 PERTAINING TO AS SESSMENT YEAR 2011-12. 2. LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET, SUBMITTED THAT THERE IS A DELAY OF 236 DAYS IN FILING THE APPEAL AND WHI CH HAS HAPPENED DUE TO THE FACT THAT AFTER PREPARING FORM NO. 36, SUCH FIL LED UP FORM GOT MIXED UP WITH OTHER OFFICE FOLDER AND CONSEQUENTLY ESCAPED T HE ATTENTION OF ASSESSEE AND, THEREFORE, THE INADVERTENT DELAY HAS HAPPENED. LEARNED COUNSEL FOR THE ASSESSEE IN THIS RESPECT INVITED OUR ATTENTION TO THE COPY OF PETITION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT OF THE AS SESSEE AND AFFIDAVIT OF THE STAFF WHO WAS RESPONSIBLE FOR FILING THE APPEAL. T HEREFORE, IN VIEW OF THESE APPELLANT BY SHRI ASHISH JAISWAL, ADVOCATE RESPONDENT BY S HRI AJAY KUMAR, D.R. DATE OF HEARING 12/08/2021 DATE OF PRONOUNCEMENT 17 / 08 /20 21 I.T.A. NO.826/LKW/2017 ASSESSMENT YEAR:2011-12 2 FACTS, IT WAS PRAYED THAT THE DELAY MAY BE CONDONED AND APPEAL MAY BE HEARD ON MERITS. 3. LEARNED D. R. HAD NO OBJECTION TO THE CONDONATIO N OF DELAY. FINDING THE REASON FOR DELAY IN FILING THE APPEAL PLAUSIBLE , THE DELAY WAS CONDONED AND LEARNED COUNSEL FOR THE ASSESSEE WAS DIRECTED T O PROCEED WITH HIS ARGUMENTS. 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS IMPOSED A PENALTY OF RS.10,000/- U/S 271(1)(B) OF THE ACT WHICH LEARNED CIT(A) HAS CONFIRMED. IT WAS SUBMITTED THAT THE AS SESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) AND LATER ON ASSESSEE HAS BEEN APPEARING BEFORE THE ASSESSING OFFICER AND THEREFORE, THE PENALTY IM POSED BE DELETED AND RELIANCE IN THIS RESPECT WAS PLACED ON THE JUDGMENT OF LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF DIVYA AGARWAL IN I.T.A. NO.268/LKW/2018 ORDER DATED 31/01/2019 AND IN THE CASE OF VISHWA NATH GUP TA IN I.T.A. NO.526 TO 532/LKW/2018 ORDER DATED 15/03/2019. 5. LEARNED D. R., ON THE OTHER HAND, SUBMITTED THAT LEARNED CIT(A) HAS PASSED EX-PARTE ORDER AS THE ASSESSEE DID NOT APPEA R BEFORE HIM THEREFORE, THE APPEAL MAY BE SET ASIDE TO LEARNED CIT(A) FOR H IS ADJUDICATION. 6. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. AS REGARDS THE ARGUMENT OF LEARN ED D. R. THAT THE CASE MAY BE SET ASIDE TO LEARNED CIT(A) FOR HIS ADJUDICA TION, WE FIND THAT ALL THE MATERIAL FACTS ARE AVAILABLE WITH US AND FOR A SMAL L AMOUNT OF RS.10,000/- IT IS NOT FEASIBLE TO SEND IT BACK AGAIN TO CIT(A) FOR HIS ADJUDICATION AND MOREOVER, THE ISSUE IS COVERED BY ORDER OF LUCKNOW BENCH OF TRIBUNAL AND, THEREFORE, WE ARE DECIDING AT OUR LEVEL. WE FIND T HAT IT IS UNDISPUTED FACT THAT THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) OF THE ACT VIDE I.T.A. NO.826/LKW/2017 ASSESSMENT YEAR:2011-12 3 ORDER DATED 04/03/2014. THE ASSESSING OFFICER HAS IMPOSED PENALTY OF RS.10,000/- U/S 271(1)(B) OF THE ACT FOR NON COMPLI ANCE OF NOTICE DATED 24/09/2012. HOWEVER, FROM THE ASSESSMENT ORDER WE FIND THAT ASSESSEE HAD FILED COMPLETE REPLY TO NOTICE U/S 142(1) OF TH E ACT AND ASSESSING OFFICER HIMSELF HAS NOTED THAT DETAILED EXPLANATION S WERE FILED BY THE ASSESSEE FROM TIME TO TIME AND HE HAS COMPLETED THE ASSESSMENT U/S 143(3) OF THE ACT. THEREFORE, THE PENALTY U/S 271( 1)(B) IS NOT IMPOSABLE IN VIEW OF THE JUDGMENT OF LUCKNOW BENCH OF THE TRIBUN AL, AS RELIED ON BY LEARNED COUNSEL FOR THE ASSESSEE. FOR THE SAKE OF COMPLETENESS, THE FINDINGS OF THE TRIBUNAL IN I.T.A. NO.268/LKW/2018 ARE REPRODUCED BELOW: 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSE E DURING THE ASSESSMENT PROCEEDINGS DID NOT COMPLY WITH THE NOTI CE ISSUED U/S 142(1) THEREFORE, THE AUTHORITIES BELOW HAVE IM POSED PENALTY U/S 271(1)(B) OF THE ACT. HOWEVER, WE FIND THAT FINALLY THE ASSESSEE DID APPEAR DURING THE ASSESSMENT PROCE EDINGS AND ASSESSMENT WAS COMPLETED U/S 147/143(3) OF THE ACT. UNDER SIMILAR CIRCUMSTANCES I.T.A.T. LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF SMT. REETA PATEL VS INCOME TAX OFFICER IN I.T.A. NO.598/LKW/2016 HAS DELETED THE PENALTY OBSERVING A S UNDER: 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSE E DURING THE ASSESSMENT PROCEEDINGS DID NOT COMPLY WITH THE NOTI CES ISSUED U/S 142(1) ON VARIOUS DATES WHICH LEARNED CIT(A) AN D ASSESSING OFFICER HAVE NOTED IN THEIR ORDER AND THEREFORE, TH E AUTHORITIES BELOW HAVE IMPOSED PENALTY U/S 271(1)(B) OF THE ACT . HOWEVER, WE FIND THAT FINALLY THE ASSESSEE DID APPEAR BEFORE THE ASSESSMENT PROCEEDINGS AND ASSESSMENT WAS COMPLETED U/S 143(3) AND THEREAFTER, THE MATTER TRAVELLED UPTO TR IBUNAL, WHICH VIDE ORDER DATED 30/01/2017 ALLOWED THE APPEAL OF T HE ASSESSEE FOR STATISTICAL PURPOSES. THEREFORE, WE DO NOT SEE ANY REASON TO UPHOLD THE ORDER OF CIT(A). WE REVERSE THE SAME AN D ALLOW THE APPEAL FILED BY THE ASSESSEE. I.T.A. NO.826/LKW/2017 ASSESSMENT YEAR:2011-12 4 RESPECTFULLY FOLLOWING THE VIEW TAKEN IN THE ABOVE APPEAL, WE DO NOT SEE ANY REASON TO UPHOLD THE ORDER OF CIT(A). WE REVERSE THE SAME AND ALLOW THE APPEAL FILED BY THE ASSESSEE . 7. KEEPING IN VIEW THE ABOVE FACTS AND CIRCUMSTANCE S, THE APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 17/08/2021) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:17/08/2021 *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 ASSISTANT REGISTRAR