Sat Pal Kaur, Panchkula V. DCIT, Chandigarh

ITA 839/CHANDI/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8549 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 18-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: N K SAINI
• Keywords: Assessment record
• Section: 142(1); 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER ITA NOS.832 TO 838/CHD/2015 (ASSESSMENT YEARS : 2005-06 TO 2011-12) SH.LAL SINGH SANDHU, VS. THE D.C.I.T., FLAT NO.J 41, PGI ENCLAVE, CENTRAL CIRCLE II, GH 94, SECTOR 20, CHANDIGARH. PANCHKULA. PAN: ANGPS6161D AND ITA NOS.839 TO 845/CHD/2015 (ASSESSMENT YEARS : 2005-06 TO 2011-12) SMT.SAT PAL KAUR, VS. THE D.C.I.T., FLAT NO.J 41, PGI ENCLAVE, CENTRAL CIRCLE II, GH 94, SECTOR 20, CHANDIGARH. PANCHKULA. PAN: AEIPK0691F APPELLANT BY : SHRI N.K. SAINI RESPONDENT BY : SHRI MANJIT SINGH, DR DATE OF HEARING : 15.01.2016 DATE OF PRONOUNCEMENT : 21.01.2016 O R D E R PER RANO JAIN, A.M . : THESE TWO BUNCHES OF FOURTEEN APPEALS FILED BY TWO DIFFERENT ASSESSES ARE DIRECTED AGAINST THE TWO SEPARETE ORDERS OF LEARNED COMMISSIONER OF INCOME TAX 2 (APPEALS)-3, GURGAON EACH DATED 31.8.2015 FOR ASSES SMENT YEARS 2005-06 TO 2010-11 RESPECTIVELY. THE APPEALS BEFORE THE CIT (APPEALS) WERE AGAINST THE ORDER OF THE ASSESSING OFFICER MADE UNDER SECTION 271 (1)(B) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. SINCE THE FACTS AND CIRCUMSTANCES ARE IDENTICAL IN ALL THE APPEALS, THE SAME WERE HEARD TOGETHER AN D ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER FOR T HE SAKE OF CONVENIENCE. THE DECISION GIVEN IN ITA NO.832/CHD/2008 SHALL APPLY TO ALL THE APPEALS OF B OTH THE ASSESSES WITH EQUAL FORCE. ITA NO.832/CHD/2015 : 3. BRIEFLY, THE FACTS OF THE CASE ARE THAT T HE RETURN FOR THE RELEVANT ASSESSMENT YEAR WAS FILED BY THE ASSESSEE UNDER SECTION 139 AS ON 12.7.2005. A SEAR CH & SEIZURE OPERATION UNDER SECTION 132(1) OF THE ACT W AS CONDUCTED ON 28.3.2011 IN PPP GROUP OF CASES INCLUD ING THE RESIDENCE OF THE ASSESSEE. IN RESPONSE TO NOTI CE UNDER SECTION 153A(1) OF THE ACT DATED 12.7.2005, THE ASS ESSEE DID NOT FILE ANY RETURN . LATER ON, A NOTICE UND ER SECTION 142(1), DATED 31.12.2012 ALONGWITH A QUESTIONNAIRE WAS SERVED ON THE ASSESSEE ASKING THE ASSESSEE TO FILE REPLY ALONG WITH DOCUMENTARY EVIDE NCE AND TO PRODUCE BOOKS OF ACCOUNT AS ON 8.1.2013. TH E ASSESSEE VIDE HIS PETITION DATED 7.1.2013 REQUESTED THE ASSESSING OFFICER TO PROVIDE COPIES OF SEIZED MATER IAL. AS 3 PER THE ASSESSING OFFICER, ON THE SAME DATE, THE AS SESSEE WAS ASKED TO COLLECT THE COPIES OF SEIZED MATERIAL ON 8.1.2013 BUT NEITHER THE ASSESSEE NOR ANY OF THE AUTHORIZED REPRESENTATIVES CAME TO COLLECT THE COPI ES OF SEIZED MATERIAL. SUBSEQUENTLY, A SHOW CAUSE DATED 28.2.2013 WAS ISSUED AND DULY SERVED ON THE ASSESSE E. HOWEVER, IN RESPONSE TO THE SAID SHOW CAUSE NOTICE NONE APPEARED ON BEHALF OF THE ASSESSEE. THE ASSESSMENT IN THIS CASE WAS COMPLETED ON THE BASIS OF INFORMATION AVAILABLE ON RECORD. ON THE BASIS OF THESE FACTS, HOLDING THAT THE ASSESSEE HAD DELIBERATELY NOT COMPLIED WIT H THE STATUTORY NOTICES, PENALTY UNDER SECTION 271(1)(B) OF THE ACT, AMOUNTING TO RS.10,000/- WAS LEVIED ON THE ASS ESSEE. 4. BEFORE THE LEARNED CIT (APPEALS), THE ASSESSEE SUBMITTED THAT THERE WAS NO REASON FOR HIM NOT TO R ESPOND TO ANY OF THE NOTICES, BUT FOR NON-SUPPLY OF THE SE IZED RECORD WHICH WAS GIVEN TO HIM AFTER A GAP OF 12 DAY S FROM THE REQUEST FOR SUPPLY OF MATERIAL. SINCE THIS MAT ERIAL WAS SUPPLIED TO HIM AFTER THE COMPLETION OF THE ASSESSMENT, HE CONTENDED THAT HE COULD NOT COMPLY W ITH THE NOTICES. THE LEARNED CIT (APPEALS) REJECTING T HE CONTENTION OF THE ASSESSEE, HOLDING THAT SINCE HE H AS NOT APPEARED BEFORE THE ASSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS AND EX-PARTE ORDER WAS MADE UNDER SECTION 153A, THE PENALTY UNDER SECTION 271(1 )(B) OF THE ACT WAS CONFIRMED. 4 5. AGGRIEVED BY THIS ORDER, THE ASSESSEE HAS COME IN APPEAL BEFORE US. THE LEARNED COUNSEL FOR THE A SSESSEE ARGUED BEFORE US THAT IN CASE THE SEIZED MATERIAL W AS PROVIDED TO THE ASSESSEE IN TIME BY THE ASSESSING O FFICER, THE ASSESSMENT WOULD NOT HAVE RESULTED EX-PARTE. I T WAS FURTHER ARGUED THAT SINCE SEIZED MATERIAL WAS PROVI DED TO HIM AFTER THE ASSESSMENT, INSPITE OF HIS REPEATED R EQUEST, THERE IS NO NON-COMPLIANCE ON HIS PART. 6. THE LEARNED D.R. RELIED ON THE ORDER OF THE LOW ER AUTHORITIES AND PRODUCED BEFORE US THE ASSESSMENT R ECORD IN ORIGINAL. IT WAS PRAYED THAT SINCE THE ASSESSEE HAS NOT COOPERATED IN THE ASSESSMENT PROCEEDINGS AND NOT COMPLIED WITH THE STATUTORY NOTICE, PENALTY UNDER S ECTION 271(1)(B) OF THE ACT SHOULD BE CONFIRMED. 7. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. ON THE PERUSAL OF ASSESSMENT ORDER AS WELL AS THE ASSESSMENT RECORD PRODUCED BEFORE US, WE SEE THAT T HERE IS A NOTICE UNDER SECTION 142(1) OF THE ACT DATED 31.12.2012 ALONGWITH A QUESTIONNAIRE ISSUED BY THE ASSESSING OFFICER, IN WHICH TOGETHER WITH THE DETAI LS AS ASKED FOR IN THE QUESTIONNAIRE, THE ASSESSEE WAS AS KED TO PRODUCE AS ON 8.1.2013. THE CONTENT OF THE NOTICE READS AS UNDER : 5 OFFICE OF THE ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-LL, CHANDIGARH. DATED-31.12.2012 TO SH.LAL SINGH SANDHU C-63, GHS-94, SECTOR-20 PANCHKULA SIR/MADAM IN CONNECTION WITH THE ASSESSMENT FOR THE ASSESSMEN T 2010-11, YOU ARE REQUIRED TO: II) PRODUCE OR CAUSE TO BE PRODUCED BEFORE ME IN THE OFFICE AT CHANDIGARH ON 08.01.2013 AT 11.30 A.M THE ACCOUNTS AND OR DOCUMEN TS SPECIFIED BELOW III) FURNISH IN WRITING AND VERIFIED IN THE PRESCRI BED MANNER INFORMATION CALLED FOR AS PER THE QUESTIONNAIRE ENCLOSED AND ON THE POINTS OR MAT TERS SPECIFIED THEREIN BEFORE ME AT MY OFFICE AT CHANDIGARH ON THE DATE AND TIME MENTIONED ABOVE. YOURS FAITHFULLY, SD/- (MANOJ KUMAR SINGH) ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-LL, CHANDIGARH 8. WITH THIS NOTICE A LETTER NO.ACIT(CC)/CHD/2012-13/2581, DATED 31.12.2012, CAPTIONING SUBJECT AS REQUISITION UNDER SECTION 14 2(1) OF THE ACT, 1961 IN YOUR CASE FOR ASSESSMENT YEAR' 200 5-06 WAS ALSO ENCLOSED. FROM THE PERUSAL OF THIS NOTICE , IT IS QUITE CLEAR THAT THE DATE FIXED FOR COMPLIANCE WAS 8.1.2013. ON FURTHER PERUSAL OF RECORD, WE SEE THA T THERE IS A LETTER FILED BY THE ASSESSEE BEFORE THE ACIT, CENTRAL CIRCLE-II, CHANDIGARH, WHICH IS STAMPED TO HAVE BEE N RECEIVED IN THE OFFICE AS ON 7.1.2013, WHEREBY THE ASSESSEE HAS REQUESTED THE ASSESSING OFFICER TO PRO VIDE PHOTOCOPIES OF THE SEIZED MATERIAL. THE CONTENT OF THE LETTER IS AS UNDER : 6 TO THE ACIT, CENTRAL CIRCLE -II, CHANDIGARH. SUBJECT - REQUISITION UNDER SECTION 142(1) OF I.T A CT. 1961 FOR THE ASSTT. YR., 2005-06,2006-07,2007-08,2008-09,2009-10 ,2010-11,2011-12.-REQ, SIR, KINDLY REFER TO YOUR LETTER NO. ACIT(CC) /CHD ? 201 2-13/2501 DATED 31-12-12 ON THE SUBJECT CITED ABOVE. IN THIS CORRECTION I WANT TO BRING TO YOUR NOTICE T HAT PHOTOCOPIES OF SEIZED MATERIAL HAVE NOT BEEN PROVIDED TO ME SO FAR , IN T HIS CONNECTION MY HUSBAND SH. LAI SINGH HAS ALREADY MET YOU AND REQUESTED FOR PRO VIDING COPIES OF MATERIAL SIZED FROM MY RESIDENCE . HOW EVER DESPITE REPEATED REQUE ST, COPIES OF SEIZED MATERIAL HAVE NOT BEEN PROVIDED TO ME SO FOR. YOU ARE ONCE AGAIN REQUESTED TO PROVIDE ME THE COPI ES OF SEIZED MATERIAL AT THE EARLIEST, SO THAT I CAN FILE MY RETURN OF INCOME NOTE : NO COPY OF SEIZED MATERIAL IS GIVEN TO ME BY INTELLIGENCE WING. PLEASE ACKNOWLEDGE THE RECEIPT . (SEARCH WING) DELHI THANKING YOU , YOURS FAITHFULLY, SD/- LAL SINGH, FLAT NO.C-63, GH-94, DATE 07/01/2013 SECTOR 20, MOBILE NO. (0) 9041788716 PANCHKULA HARYANA 9. FROM THE PERUSAL OF THIS LETTER, IT IS QUITE CL EAR THAT THIS LETTER WAS FILED IN REPLY TO NOTICE DATED 31.12.2012. THIS IS ALSO QUITE CLEAR THAT IN THE A BSENCE OF SEIZED MATERIAL ASSESSEE WAS UNABLE TO FILE HIS RET URN OF INCOME. IN SUCH CIRCUMSTANCES, WE DO NOT FIND THAT THE ASSESSEE HAS NOT COMPLIED WITH THE NOTICE DATED 31.12.2012, WHEREBY THE CASE WAS FIXED FOR 8.1.2013 . IN FACT, THE ASSESSEE HAS REPLIED A DAY EARLIER, I.E. AS ON 7.1.2013. THE ASSESSEE HAS ALSO STATED HIS REASON FOR INABILITY TO FILE RETURN OF INCOME. IN THIS VIEW, THIS IS A 7 PROPER COMPLIANCE OF THE NOTICE. THE COMPLIANCE OF A NOTICE DOES NOT ALWAYS MEAN THAT EACH AND EVERY QUE RY OR DETAIL ASKED FOR IN THE NOTICE IS REPLIED IN COMPL IANCE. THE COMPLIANCE CAN ALSO BE EITHER IN THE FORM OF A REQUEST FOR ADJOURNMENT, OR AS IN THE PRESENT CASE STATING THE REASONS FOR NOT BEING ABLE TO GIVE FACTUAL REPLY TO THE NOTICE. THE ASSESSING OFFICER HAS LEVIED PENALTY U NDER SECTION 271(1)(B) OF THE ACT ON NON-COMPLIANCE OF N OTICE DATED 31.12.2012, WHICH IN OUR VIEW, HAS NOT REMAIN ED UN-COMPLIED WITH. WHATEVER HAPPENED LATER ON, IS S NOT RELEVANT FOR ADJUDICATING THE ISSUE OF PENALTY UNDE R SECTION 271(1)(B) OF THE ACT. 10. THE APPEAL OF THE ASSESSEE IN ITA NO.832/CHD/2015 IS ALLOWED. 11. IN THE RESULT, ALL THE APPEALS OF BOTH THE ASSESSES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF JANUARY, 2016. SD/- SD/- (H.L. KARWA) (RANO JAIN) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 21 ST JANUARY, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH