MOHIT ANAND, GHAZIABAD V. IT OFFICER RANGE-1(3), Allahabad

ITA 88/ALLD/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1190 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause; Reassessment proceedings
• Section: 273B; 142(1); 139(1); 147; 148; 144

Judgement Text

P A G E | 1 ITA NO.88/ALLD/2019 A.Y. 2009 - 10 MOHIT ANAND VS. INCOME TAX OFFICER, RANGE - 1(3) IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD SMC BENCH, ALLAHABAD BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER THROUGH VIRTUAL COURT ITA NO.88/ALLD/2019 ASSESSMENT YEAR: 2009 - 10 MOHIT ANAND FLAT NO. 38042, G.C. GRAND VAIBHAV KHAND, INDIRAPURAM GHAZIABAD, UTTAR PRADESH 201014 VS. INCOME TAX OFFICER, RANGE - 1(3), AAYAKAR BHAVAN, 38, M.G. MARG, 2 ND FLOOR, ALLAHABAD, UTTAR PRADESH 211001 PAN: AEJPA2426D (APPELLANT) (RESPONDENT) APPELLANT BY: MR. ASHISH BANSAL , ADV. RESPONDENT BY: MR. A.K.SINGH SR. DR. DATE OF HEARING: 07 .07.2021 DATE OF PRONOUNCEMENT: 08 .07.2021 O R D E R PER VIJAY PAL RAO (JUDICIAL MEMBER): THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 27.03.2019 OF CIT(A) ARISING FROM PENALTY ORDER PASSED U/S 271(1)(B) FOR THE ASSESSMENT YEAR 2009 - 10 WHEREIN THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS : 1. BECAUSE IN VIEW OF THE ADMITTED FACTS THAT NO NOTICE WAS EVER SERVED UPON THE APPELLANT IN RELATION TO THE REASSESSMENT PROCEEDINGS INIT IATED UNDER SECTION 147 OF THE ACT BY ISSUANCE OF NOTICE DATED 31.03.2013 UNDER SECTION 148 OF THE ACT BY ID; ITO, IMPOSIT ION OF PENALTY UNDER SECTION 271(1 )(B) BY THE ID. ITO FOR THE ALLEGED NON - COMPLIANCE ON THE PART OF THE APPELLANT, AS ALSO CONFIRMED B Y THE CIT(A) IS WHOLLY VITIATED AND BAD IN LAW. 2. B ECAUSE, THE OBSERVATION MADE BY THE CIT( A) IN THE IMPUGNED PENALTY ORDER DATED 27.03.2019 BEING; P A G E | 2 ITA NO.88/ALLD/2019 A.Y. 2009 - 10 MOHIT ANAND VS. INCOME TAX OFFICER, RANGE - 1(3) 'I HAVE GONE THROUGH THE FACTS AND THE ORDER OF AO AND SUBMISSIONS MADE BY APPELLANT, I AM NOT ABLE TO AG REE WITH THE SUBMISSIONS MADE BY APPELLANT. ON PERUSAL OF THE PENALTY ORDER AND ALSO THE CORRESPONDING ASSESSMENT ORDER, IT IS SEEN THAT THE ASSESSEE HAS FAILED TO MAKE COMPLIANCE WITH NOTICES ISSUE BY THE A.O. THE ASSESSMENT ORDER HAS BEEN FRAMED U/S 144 OF THE I.T. ACT FURTHER, THE APPELLANT HAS FAILED TO LEA D ANY CLARIFICATION TOR SUCH NON - COMPLIANCE. THE PENALTY SO LEVIED IS PERFECTLY JUSTIFIED. THE APPEAL IS DISMISSED. IS WHOLLY INCORRECT AND ERRONEOUS SO THE ORDER PASSED BY HIM IS BAD AND DESERVED TO BE STRUCK DOWN. 3. BECAUSE IN VIEW OF THE ADMITTED FACT THAT DUE TO CHANGE OF PLACE OF RESIDENCE, NO NOTICE AS ALSO THE REASSESSMENT ORDER/ PENALTY ORDERS WERE SERVED UPON THE APPELLANT, ACCORDINGLY THE ALLEGED 'NON - COMPLIANCE' AS ALSO 'FAILURE TO LEAD ANY CLARIFICATION FOR SUCH NON - COMPLIANCE' IS WHOLLY IN BASELESS AND ARBITRARY TOO. 4. BECAUSE ALL THE FACTS AND CIRCUMSTANCES HAVING BEEN PLACED BEFORE THE CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS, HE HAD GRIEVOUSLY ERRED IN CONFIRMING THE PENA LTY IMPOSED UNDER SECTION 271(1)(B ) OF THE ACT BY THE ID. ITO. 5. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 2. T HE LD. A.R OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSMENT ORDER WAS PASSED BY THE A.O U/S 147 R.W.S 144 AS THE ASSESSEE HAS NOT PARTICIPATED IN THE ASSESSMENT PROCEEDINGS DUE TO THE REASON THAT THE NOTICES ISSUED BY THE A.O AT THE ADDRES S WHICH WAS LEFT BY THE ASSESSEE. THE ASSESSEE SOLD THE SAID HOUSE AND SHIFTED TO NOIDA IN THE YEAR 2008 ITSELF. THE LD. A.R HAS SUBMITTED THAT THE ASSESSEE HAS NOT RECEIVED ANY NOTICES ISSUED BY THE A.O DUE TO THE REASON THAT THE ASSESSEE ALREADY SHIFTED TO NOIDA AND THE HOUSE WHERE THE NOTICES WERE SENT BY THE A.O WAS ALREADY SOLD. H E HAS FURTHER SUBMITTED THAT THE ASSESSEE HAS ALREADY SETTLED THE DISPUTE OF TAX DEMAND IN THE QUANTUM APPEAL UNDER THE VIVAD SE VISHWAS SCHEME, 2020. THE LD. A.R HAS SUBMITTED THAT THERE IS A REASONABLE CAUSE FOR NON - COMPLIANCE OF NOTICE ISSUED BY THE A.O U/S 142(1) OF THE INCOME TAX ACT AND THEREFORE, THE PENALTY LEVIED BY THE A.O U/S 271(1)(B) OF RS.10,000/ - IS NOT JUSTIFIED AND THE SAME MAY BE DELETED. 3. ON THE OTHER HAND, THE LD. D.R HAS SUBMITTED THAT THE ASSESSEE HAD NEVER FURNISHED THE CURRENT ADDRESS TO THE A.O AND THEREFORE, THE ASSESSING OFFICER WAS HAVING THE ADDRESS WHICH WAS GIVEN BY THE ASSESSEE. ONCE THE NOTICES WERE ISSUED AT THE ADDRESSES GIVEN BY THE ASSESSEE THEN THE ASSESSEE CANNOT TAKE THE PLEA OF NON P A G E | 3 ITA NO.88/ALLD/2019 A.Y. 2009 - 10 MOHIT ANAND VS. INCOME TAX OFFICER, RANGE - 1(3) SERVICE OF NOTICES. TH US, THE LD. D.R HAS SUBMITTED THAT THE ASSESSEE HAS COMMITTED THE DEFAULT IN COMPLIANCE OF NOTICE ISSUED BY A.O U/S 142(1) OF THE INCOME TAX ACT AND WAS LIABLE FOR LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. HE HAS RELIED UPON THE ORDERS OF THE AUTHORITIES B ELOW. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AS WELL AS RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT BY ISSUING NOTICE U/S 148 ON 31 ST MARCH, 2016 TO ASSESS THE INCOME ON ACCOUNT OF DEPOSITS MADE IN THE SAVING BANK ACCOUNT OF THE ASSESSEE OF RS.11,68,000/ - . T HE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION EITHER U/S 139(1) OR IN RESPONSE TO NOTICE ISSUED U /S 148 OF THE INCOME TAX ACT. CONSEQUENTLY, THE A.O HAS FRAMED THE ASSESSMENT U/S 147 R.W.S 144 OF THE INCOME TAX ACT. THOUGH THE ASSESSING OFFICER HAS ISSUED NOTICE U/S 142(1) AS WELL AS THE SHOW CAUSE NOTICE U/S 271(1)(B) AND U/S 144 OF THE ACT H OWEVER , ALL THESE NOTICES WERE REMAINED UNSERVED DUE TO THE REASON THAT THE ASSESSEE WAS NOT AVAILABLE AT THE GIVEN ADDRESS. THIS FACT OF NON AVAILABILITY OF THE ASSESSEE IS NOT IN DISPUTE AS THE ASSESSEE ALREADY SOLD THIS RESIDENTIAL HOUSE AND SHIFTED TO NOIDA. T HE ASSESSING OFFICER HAS NOT ACTED OR TAKEN ANY STEP TO FIND OUT THE FRESH ADDRESS OF THE ASSESSEE DESPITE THE FACT THAT THE NOTICES ISSUED BY THE A.O WERE REMAINED UNSERVED DUE TO THE REASON THAT THE ASSESSEE WAS NOT AVAILABLE AND SHIFTED FROM THE SAID AD DRESS. IT IS A CASE OF REOPENING OF TH E ASSESSMENT FOR ASSESSING THE DEPOSITS MADE IN TH E BANK ACCOUNT OF THE ASSESSEE A S THE ASSESSEE WAS NOT HAVING ANY OTHER SOURCE OF INCOME TO BE DECLARED IN THE RETURN OF INCOME. THEREFORE, THE NON - COMPLIANCE ON THE PART OF THE ASSESSEE IS DUE TO THE REASON OF NOT RECEIVING THE NOTICE ISSUED BY THE A.O. ONCE THE ASSESSEE HAS SETTLED HIS DISPUTE ARISING FROM THE QUANTUM PROCEEDINGS UNDER VIVAD SE VISHWAS SCHEME, 2020 AND EXPLAINED THE REASONABLE CAUSE FOR DEFAULT O R FA ILURE I N COMPLIANCE OF THE NOTICE ISSUED BY THE A.O U/S 142(1) THEN THE CASE OF THE ASSESSEE FALLS U/S 273B OF THE INCOME TAX ACT. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE ASSESSEE HAS EXPLAINED A REASONABLE CAUSE FOR FAILURE TO COM PLY WITH THE NOTICES ISSUED BY THE A.O P A G E | 4 ITA NO.88/ALLD/2019 A.Y. 2009 - 10 MOHIT ANAND VS. INCOME TAX OFFICER, RANGE - 1(3) U/S 142(1) THE PENALTY LEVIED U/S 271(1)(B) OF THE ACT IS NOT SUSTAINABLE AND LIABLE TO BE QUASHED. 5. THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT THROUGH VIDEO CONFERENCING ON 08 .07.2021 AT THE TIME OF HEARING. SD/ - [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 08 /07/2021 PS: ROHIT COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT - 5. DR BY ORDER ASSI STANT REGISTRAR