Ranjit Kumar Paul, Dakshin Dinajpur V. DCIT, CC-XXVII, KOLKATA, Kolkata

ITA 880/KOL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0695 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 28-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Reasonable cause; Non compliance; Condonation of delay
• Section: 273B; 143(3); 142(1); 153A; 27; 2

Judgement Text

1 ITA NOS. 880-886/KOL/2016 ASSES SMENT YEARS: 20062007 TO 2012-2013 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA D BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NOS. 880, 881, 882, 883, 884, 885 & 886/KOL. /2016 ASSESSMENT YEARS: 2006-07, 07-08, 08-09, 09-10, 10- 11, 11-12 & 2012-13 SHRI RANJIT KUMAR PAUL,............................ ......................APPELLANT THANA ROAD, GANGARAMPUR, DAKSHIN DINAJPUR-733 124 [PAN: AFQPP 0502 B] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ......RESPONDENT CENTRAL CIRCLE-XXVII, KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLI, E.M. BYE-PASS, KOLKATA-700 107 APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE, FOR THE ASSESSEE SHRI A.K. TIWARI, CIT, D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : DECEMBER 04, 2017 DATE OF PRONOUNCING THE ORDER : DECEMBER 13, 2017 O R D E R PER BENCH: THESE SEVEN APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST SEVEN SEPARATE ORDERS PASSED BY THE LD. COMMISSIONE R OF INCOME TAX (APPEALS)-21, KOLKATA, ALL DATED 16.02.2016, WHEREB Y HE CONFIRMED THE PENALTIES IMPOSED BY THE ASSESSING OFFICER UNDER SE CTION 271(1)(B) OF THE ACT FOR ALL THE SEVEN YEARS UNDER CONSIDERATION, I. E. A.Y. 2006-07 TO 2012- 13. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO BELONGS TO PAUL GROUP. A SEARCH AND SEIZURE ACTION UNDER SECTI ON 132(1) OF THE ACT WAS CONDUCTED IN THE CASES BELONGING TO PAUL GROUP INCLUDING THE CASE OF THE ASSESSEE. PURSUANT TO THE SAID ACTION, NOTICES UNDER SECTION 153A 2 ITA NOS. 880-886/KOL/2016 ASSES SMENT YEARS: 20062007 TO 2012-2013 WERE ISSUED BY THE ASSESSING OFFICER, IN RESPONSE T O WHICH, THE RETURNS OF INCOME FOR THE YEARS UNDER CONSIDERATION WERE FILED BY THE ASSESSEE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR ALL THE SEVEN YEARS UNDER CONSIDERATION, NOTICES UNDER SECTION 142(1) W ERE ISSUED BY THE ASSESSING OFFICER CALLING FOR THE INFORMATION FROM THE ASSESSEE AS REQUIRED FOR THE PURPOSE OF ASSESSMENTS. THERE WAS, HOWEVER, NO COMPLIANCE ON THE PART OF THE ASSESSEE TO SOME OF T HE NOTICES ISSUED BY THE ASSESSING OFFICER UNDER SECTION 142(1) AND ACCO RDINGLY PENALTY UNDER SECTION 271(1)(B) WAS IMPOSED BY THE ASSESSING OFFI CER AT THE RATE OF RS.10,000/- FOR EACH NON-COMPLIANCE FOR ALL THE SEV EN YEARS UNDER CONSIDERATION AGGREGATING AS UNDER:- ASSESSMENT YEAR AMOUNT 2006 - 07 RS.20,000/ - 2007 - 08 RS.20,000/ - 2008 - 0 9 RS.20,000/ - 2009 - 10 RS.20,000/ - 2010 - 11 RS.20,000/ - 2011 - 12 RS.20,000/ - 2012 - 13 RS.20,000/ - 3. THE PENALTIES IMPOSED BY THE ASSESSING OFFICER U NDER SECTION 271(1)(B) FOR ALL THE YEARS UNDER CONSIDERATION WER E CHALLENGED BY THE ASSESSEE IN THE APPEALS FILED BEFORE THE LD. CIT(AP PEALS) AND THE FOLLOWING SUBMISSIONS WERE MADE BY THE ASSESSEE BEFORE THE LD . CIT(APPEALS) IN SUPPORT OF HIS CASE THAT THE SAID PENALTIES WERE LI ABLE TO BE CANCELLED BEING NOT SUSTAINABLE ON FACTS AS WELL AS IN LAW:- IN THE INSTANT CASE, SHRI RANJAN KUMAR PAUL, WHO I S THE YOUNGER BROTHER OF THE ASSESSEE IS LOOKING AFTER TH E TAXATION MATTER OF THE ASSESSEE. IT IS HUMBLY SUBMITTED THAT THE HEALTH CONDITION OF THE ASSESSEE, SHRI RANJIT KUMAR PAUL, EIDER BROTHER OF SRI RANJAN KURNAR PAUL WAS VERY CRITICAL DUE TO SEVERE ILLNESS. DURING THE COURSE OF ASSESSMENT PRO CEEDINGS, THE LD. A.O, ISSUED NOTICES U/S. 142(1) ON 28,10.20 13 & 09.12.2013. IT IS HUMBLY SUBMITTED THAT SHRI RANJAN KUMAR PAUL, WAS BUSY IN LOOKING AFTER HIS BROTHER FOR HIS TREATMENT DURING THAT PERIOD. FOR THAT REASON, THE DIRECTOR N EITHER CAN 3 ITA NOS. 880-886/KOL/2016 ASSES SMENT YEARS: 20062007 TO 2012-2013 ATTEND THE HEARING ON THE SPECIFIED DATES NOR COULD INFORM HIS CONSULTANT TO COMPLY SUCH NOTICES. DETAILS OF HIS MEDICAL REPORTS ALONG WITH PRESCRIP TIONS ARE ANNEXED HEREWITH AND MARKED AS ANNEXURE: 'A', (B) IT IS HUMBLY SUBMITTED THAT FINALLY WHEN THERE WAS A SLIGHT RECOVERY IN HIS BROTHER'S HEALTH, PROPER COM PLIANCES WERE MADE BEFORE THE LD. A.O. AND THE ASSESSMENT WA S COMPLETED U/S 143(3)/153A, IT IS FURTHER SUBMITTED THAT THE ASSESSEE WAS NOWHERE TRYING TO AVOID THE PROCEEDING S AND WAS ALWAYS COOPERATING IN EVERY POSSIBLE MANNER. (C) IT IS FURTHER SUBMITTED THAT DURING THE COURSE OF PENALTY PROCEEDINGS U/S 271(1)(B), THE A/R OF THE ASSESSEE FILED A BONAFIDE SUBMISSION EXPLAINING THE REASON FOR NON- APPEARANCE AND ALSO REQUESTED FOR DROPPING THE PENA LTY PROCEEDING U/S 271(1)(B) OF THE ACT. COPY OF THE SA ME IS ANNEXED HEREWITH AND MARKED AS ANNEXURE B. HOWEVER, THE LD. A.O. IMPOSED PENALTY OF RS. 20,000/- FOR NON CO MPLIANCE OF NOTICES U/S.142(1) ISSUED ON SEVERAL ELATES WITH OUT CONSIDERING THE FACTS THAT THE ASSESSEE WAS PREVENT ED BY REASONABLE CAUSE FOR SUCH FAILURE OF NON COMPLIANCE S AND THERE WAS NO DELIBERATE INTENTION ON THE PART OF AS SESSEE FOR NOT COMPLYING WITH THE SAID NOTICE. (D) IN THE CASE OF HINDUSTAN STEEL LTD. VS, STATE OF ORISSA 83 ITR 26, HON'BLE SUPREME COURT HAS HELD THAT PENALTY SHOULD NOT BE IMPOSED MERELY FOR THE TECHNICAL OR THE VENI AL BREACH OF LAW AND THE AUTHORITIES MAY DECLINE TO UPHOLD TH E PENALTY CONSIDERING THE NATURE OF BREACH. 4. THE LD. CIT(APPEALS) DID NOT FIND MERIT IN THE S UBMISSIONS MADE ON BEHALF OF THE ASSESSEE AND PROCEEDED TO CONFIRM THE PENALTIES IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(B) FOR T HE FOLLOWING REASONS GIVEN IN HIS IMPUGNED ORDERS, WHICH ARE COMMON FOR ALL THE SEVEN YEARS UNDER CONSIDERATION:_ THE APPELLANT HAS FILED THREE GROUNDS OF APPEAL B UT ALL GROUNDS ARE MAINLY REGARDING IMPOSITION OF PENALTY U/S 271( 1)(B) OF THE ACT. IN VIEW OF THIS THE MATTER IS DISCUSSED WITH T HE LD. A/R AND ACCORDINGLY ALL THE GROUNDS ARE TAKEN UP TOGETHER F OR ADJUDICATION. THE LD. AUTHORIZED REPRESENTATIVE OF THE APPELLANT APPEARED ON 10.02.2016 AND CHALLENGED THE IMPOSITION OF PENALTY U/S271(1)(B) OF THE ACT, ON THE GROUND THAT THE ASSESSMENT WAS A LREADY COMPLETED ON 2803.2014 BUT PENALTY ORDER U/S.271(I) (B) OF THE ACT IS PASSED ON 15.09.2016, AND THEREFORE THE A.O. IS NOT JUSTIFIED. IN COURSE OF DISCUSSION, IT IS EXPLAINED AS TO WHY PEN ALTY PROCEEDING IS INITIATED AT THE TIME OF THE COMPLETION OF ASSESSME NT AND THE PENALTY PROCEEDING HAS TO BE COMPLETED WITHIN PRESC RIBED TIME PERIOD. THEN THE LD. A/R REFERRED TO THE ILLNESS OF SHRI RANJIT 4 ITA NOS. 880-886/KOL/2016 ASSES SMENT YEARS: 20062007 TO 2012-2013 KUMAR PAUL, A MEMBER OF THE FAMILY AND ARGUED THAT SINCE SHRI RANJIT KUMAR PAUL WAS NOT WELL, THERE WERE NON-COMP LIANCES IN RESPONSE TO THE NOTICES U/S142(1) OF THE ACT DURING ASSESSMENT PROCEEDING. THIS EXPLANATION HAS NOT BEEN SUBMITTED TILL DATE. THE COPY OF DISCHARGE SUMMARY OF SHRI RANJIT KURNAR PAU L SHOWS THAT HE WAS OPERATED IN APPOLLO HOSPITAL ON 20.05.2011 A ND DULY DISCHARGED ON 06.06.2011. LATER ON HE WAS HOSPITALI ZED FOR TWO DAYS IN FEBRUARY/MARCH, 2013. 5.1. THE PENALTY U/S. 271(1)(B) OF THE ACT IS IMPO SED ON THE ASSESSEE FOR THE NON-COMPLIANCE TO THE NOTICES ISSU ED U/S. 142(1) OF THE ACT ISSUED ON 26.06.2013, 01.07.2013 AND 13.12. 2013 WHEREIN REQUEST WAS MADE TO THE ASSESSEE TO APPEAR ON 08.07 .2013, 1207 2013 AND 2002 2013. REFERENCE IS MADE TO THE OPERAT ION OF SHRI PAUL IN 2011 AND TWO DAYS HOSPITALIZED IN FEBRUARY/ MARCH, 2013. 5.2. IT IS SEEN THAT SHRI RANJIT KURNAR PAUL WAS N OT IN THE HOSPITAL DURING THE PERIOD WHEN NON-COMPLIANCE TOOK PLACE. I T IS ALSO SEEN THAT THE APPELLANT, BESIDES NOT INFORMING THE ASSES SING OFFICER ABOUT THE SAID MEDICAL REASON DURING THE ASSESSMENT PROCEEDING OR SUBSEQUENTLY DURING THE PENALTY PROCEEDING, DID NOT MENTION A WORD ABOUT IT AT THE TIME OF THE FILING OF APPEAL O R EVEN LATER TILL 10.02.2016 THE APPEAL IN THIS CASE WAS FILED ON 14. 11.2014. EVEN AFTER THAT THE APPELLANT DID NOT REFER TO THIS AS T HE REASON FOR THE NON-COMPLIANCE DURING THE ASSESSMENT PROCEEDING WHI CH RESULTED INTO THE INITIATION AND SUBSEQUENTLY IMPOSITION OF PENALTY U/S. 271(1)(B) OF THE ACT. THIS IS NEITHER REFERRED IN T HE GROUNDS OF APPEAL NOR IN THE STATEMENT OF FACTS. ONLY CURING T HE COURSE OF THE INSTANT APPEAL PROCEEDING I.E. ON 10.02.2014 THE AP PELLANT HAS REFERRED TO THE SAID EXCUSE REGARDING ILLNESS OF A MEMBER OF THE FAMILY DUE TO WHICH THERE WERE NON-COMPLIANCES BUT THE A/R OF THE APPELLANT FAILED TO EXPLAIN AS TO HOW DID IT STOP T HE APPELLANT'S LD. A/R FROM APPEARING BEFORE THE ASSESSING OFFICER. 5.3. THE LD. A/R SUBMITTED THAT 'DURING THE COURSE OF PENALTY PROCEEDINGS U/S,271(1)(B), THE A/R. OF THE ASSESSEE FILED A BONAFIDE SUBMISSION EXPLAINING THE REASON FOR NON-APPEARANCE AND ALSO REQUESTED FOR THE DROPPING THE PENALTV PROCEEDING U /S.271(1)(B) OF THE ACT. IT IS PERTINENT TO MENTION THAT THE REFERR ED SUBMISSION DT.23.05.2014 DOES NOT MENTION A WORD ABOUT THE ILL NESS OF SHRI RANJIT KUMAR PAUL. THE A.O. HAS ONLY REPRODUCED THE ENTIRE SUBMISSION IN THE RELEVANT PENALTY ORDER U/S.271(1) (B) OF THE ACT THE SAID SUBMISSION OF THE LD. AR DT. 23.05.2014 IS REPRODUCED BELOW:- ..............HAVE BEEN ALLEGED TO HAVE FAILED TO RESPOND ON FEW OCCASIONS ON THE GIVEN DATES AS PER YOUR NOTICE SER VED U/S. 142(1)/143(2) FOR A.Y, 2006-07 TO A.Y. 2012-13, HOW EVER, I HAD NO INTENTIONS TO DEFY OR DISOBEY THE ORDER, FURTHER IT IS ALSO A MATTER OF FACT THAT NO PENALTY NOTICE U/S.271(1)(B) WAS SE RVED FROM YOUR END DURING THE PENDENCY OF ASSESSMENT PROCEEDINGS A ND THE SAME WAS SERVED ONLY AT THE TIME OF COMPLETION OF ASSESS MENT U/S. 153A/143(3), THAT IS ON 28.03.2014, HENCE THE ALLEG ED OFFENCE HAS 5 ITA NOS. 880-886/KOL/2016 ASSES SMENT YEARS: 20062007 TO 2012-2013 ALREADY BEEN EXONERATED BY YOUR HONOUR AND THEREFOR E NO FURTHER ACTION SHALL BE SUSTAINED IN THE EYE OF LAW. HENCE, I REQUEST YOUR HONOUR THAT THE PENALTY PROCEEDINGS U/S 271(1)(B) F OR AY 2006-07 TO AY 2012-13 MAY PLEASE BE DROPPED FOR THE SAME OF JUSTICE. IT IS APPARENT THAT NO VALID REASON IS MENTIONED A ND THE ILLNESS OF SHRI PAUL IS CERTAINLY NOT MENTIONED AS THE REASON FOR THE REFERRED NON-COMPLIANCES OF THE NOTICES U/S.142(1) OF THE AC T. 5.4. THE LD. A/R CONTINUED TO ARGUE THAT SHRI RANJI T KUMAR PAUL'S ILLNESS HAD PREVENTED THEM FROM COMPLYING WITH THE NOTICES U/S.142(1) OF THE ACT. HOWEVER, IT IS SEEN THAT SHR I RANJIT KUMAR PAUL WAS NOT REPRESENTING BEFORE THE DEPARTMENT OR FOR THAT MATTER ASSOCIATED WITH ANY INCOME TAX PROCEEDING. THE LD A /R AGREED WITH THIS BUT HE INSISTED THAT THE ILLNESS OF SHRI PAUL WAS THE ONLY REASON. IT IS SEEN THAT THE APPELLANT HAD MADE A PL EA WHILE REQUESTING FOR THE CONDONATION OF DELAY IN THE FILI NG OF APPEAL. AT THAT POINT OF TIME THE APPELLANT HAS SUBMITTED THAT 'THE COST ACCOUNTANT SHRI GURUDAS DEY WAS ON LEAVE SO THE DEL AY IN THE FILING OF APPEAL.' SHRI GURUDAS DEY IS THE TD. AIR OF THE APPELLANT IN THIS CASE. THUS IT IS SEEN THAT THE SAID EXCUSE, THAT ON E PERSON IN FAMILY WAS NOT WELL SO NO COMPLIANCE, IS NOT CONSIDERED VA LID IN COURSE OF APPEAL PROCEEDING, THE LD A/R FAILED TO EXPLAIN AS TO WHY THE ILLNESS OF SHRI RANJIT KUMAR PAUL, WHICH IS THE ONL Y EXCUSE FOR LION- COMPLIANCE, WAS NOT BROUGHT TO THE KNOWLEDGE OF THE ASSESSING OFFICER DURING ASSESSMENT/PENALTY PROCEEDING OR LAT ER, AT THE TIME 'THE FILING OF INSTANT APPEAL, OR FOR THAT MATTER T ILL 10,02.2016? AND SECONDLY, HOW DID THE REFERRED ILLNESS PREVENTED TH E APPELLANT IN COMPLYING THROUGH ANY AUTHORIZED REPRESENTATIVE? 5.5. THE TD. A/R COULD NOT REPLY TO THE ABOVE BUT ARGUED REPEATEDLY THAT DUE TO THE ILLNESS OF SHRI RANJIT K URNAR PAUL, THE NON-COMPLIANCES TOOK PLACE, THIS IS NO REASONABLE E XPLANATION. THE A/R WAS ALSO REQUESTED TO INFORM WHETHER ALL AC TIVITIES OF THE APPELLANT STOPPED DUE TO THE STATED EXCUSE OR ONLY THE COMPLIANCE BEFORE THE ASSESSING OFFICER GOT AFFECTED. THE A/R DID NOT REPLY. THE CASE LAW, (HINDUSTAN STEEL :LTD. VS.- STATE OF ORISSA 83 ITR 26) CITED BY THE PPELLANT, HAS BEEN REFERRED BUT TH AT IS NOT APPLICABLE IN THE INSTANT APPEAL MATTER. THUS IT IS SEEN THAT THE ASSESSEE HAD DELIBERATELY NOT COMPLIED WITH THE NOT ICES DULY ISSUED BY THE AO U/S 142(1) OF THE ACT. LATER ON, T HE APPELLANT HAS TAKEN A PLEA REGARDING ILLNESS OF ONE OF THE FAMILY MEMBER WHICH IS AN APPARENT CASE OF AFTERTHOUGHT IT IS ALSO SEEN THAT THE REFERRED NON-COMPLIANCES AFFECTED THE ASSESSMENT PR OCEEDING AND THE SAME GETS REFLECTED IN THE OBSERVATION, IN THIS REGARD, AS MADE IN THE RELEVANT ASSESSMENT ORDER. IN VIEW OF THAT, THE INSTANT PENALTY PROCEEDING WAS INITIATED. EVERY TIME THE HE ARING IS FIXED, THE ASSESSING OFFICER HAS TO PREPARE AND THEN WITHO UT ANY PRIOR INTIMATION OR REQUEST FOR ADJOURNMENT, THE ASSESSEE DOES NOT APPEAR. EVEN AFTERWARDS THE ASSESSEE DOES NOT SUBMI T ANY EXPLANATION. THIS TYPE OF DELIBERATE NON-COMPLIANCE AS DONE BY THE ASSESSEE IN THIS CASE, ADVERSELY AFFECTS THE PR OCESS OF ASSESSMENT AND THE COMPLETION OF THE IMPORTANT ASSE SSMENT 6 ITA NOS. 880-886/KOL/2016 ASSES SMENT YEARS: 20062007 TO 2012-2013 PROCEEDING GOT DELAYED. AS DISCUSSED THE EXPLANATIO NS OF THE LD. A/R DATED 10.07.2016 DOES NOT SUBSTANTIATE THE CLAI MS AS MADE IN THE GROUNDS OF APPEAL. THUS IN VIEW OF THE FACTS AN D CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER WAS JUSTIFIED IN IMPOSING PENALTY U/S 271(1)(B) OF THE ACT AND LEVY RS.20,000/- FOR N ON-COMPLIANCE OF NOTICES U/S.142(1) OF THE ACT. THEREFORE, APPEAL ON THE REFERRED GROUNDS IS DISMISSED. AGGRIEVED BY THE ORDERS OF THE LD. CIT(APPEALS) CON FIRMING THE PENALTIES IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271( 1)(B), THE ASSESSEE HAS PREFERRED THESE APPEALS BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. 6. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, HAS SUBMITTED THAT THE COMMON ISSUE INVOLVED IN THE CASE OF THE ASSESS EE IN THESE APPEALS IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE D ECISION OF THE TRIBUNAL RENDERED IN THE CASE OF SMT. SHABARI PAUL, AN ASSES SEE BELONGING TO THE SAME GROUP RENDERED VIDE ITS ORDER DATED 17.11.2017 PASSED IN ITA NOS. 825-831/KOL/2016, WHEREBY THE SIMILAR PENALTIES IMP OSED UNDER SECTION 271(1)(B) FOR A.YS. 2006-07 TO 2012-13 HAVE BEEN CA NCELLED BY THE TRIBUNAL BY RELYING ON THE ORDER OF ITS BENCH AT DE LHI IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST VS.- ASSISTANT DIRECTOR OF INCOME TAX [115 TTJ (DEL.) 419], WHEREIN IT WAS HELD THAT THE FACT THAT THE ASSESSMENT WAS FINALLY COMPLETED BY THE ASSESSI NG OFFICER UNDER SECTION 143(3) WAS SUFFICIENT TO SHOW THAT THERE WA S SUBSTANTIAL COMPLIANCE MADE BY THE ASSESSEE. IT WAS HELD THAT T HE DEFAULT COMMITTED BY THE ASSESSEE THUS COULD NOT BE SAID TO BE WILFUL AND THE PENALTIES IMPOSED UNDER SECTION 271(1)(B) WAS LIABLE TO BE CA NCELLED. 7. THE LD. CIT( D.R.) IN THIS REGARD HAS RELIED ON THE DECISION OF THE DELHI BENCH OF THIS TRIBUNAL RENDERED ON 05.10.2017 IN THE CASE OF SANJAY DALMIA (ITA NOS. 3795 TO 3801/DEL./2014) AND SUBMIT TED THAT THE PENALTIES IMPOSED UNDER SECTION 271(1)(B) IN THE SA ID CASE FOR A.YS. 7 ITA NOS. 880-886/KOL/2016 ASSES SMENT YEARS: 20062007 TO 2012-2013 2006-07 TO 2012-13 WERE CONFIRMED BY THE TRIBUNAL A FTER TAKING INTO CONSIDERATION ITS EARLIER DECISION RENDERED IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST (SUPRA). A PER USAL OF THE ORDER PASSED BY THE TRIBUNAL IN THE SAID CASE, HOWEVER, S HOWS THAT ALTHOUGH THE DECISION IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHI KSHAK SANGH BHAWAN TRUST (SUPRA) WAS REFERRED TO BY THE TRIBUNAL IN PA RAGRAPH NO. 17, AS A PART OF THE SUBMISSIONS MADE ON BEHALF OF THE ASSES SEE, THE SAME HAD NOT BEEN DEALT WITH OR DISCUSSED IN THE OPERATIVE PORTI ON OF THE ORDER. THERE IS THUS NO FINDING OR OBSERVATION RECORDED BY THE T RIBUNAL IN THE ORDER PASSED IN THE CASE OF SANJAY DALMIA (SUPRA) SO AS T O SAY THAT THE DECISION IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SAN GH BHAWAN TRUST WAS CONSIDERED AND DISTINGUISHED. IN ANY CASE, THE FACT S INVOLVED IN THE CASE OF SANJAY DALMIA (SUPRA) WERE MATERIALLY DIFFERENT FROM THE FACTS INVOLVED IN THE CASE OF THE ASSESSEE AS RIGHTLY POI NTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE, INASMUCH AS, THE ASSESSEE IN THE SAID CASE HAD FAILED TO FURNISH THE INFORMATION REQUIRED BY THE A SSESSING OFFICER WITH RESPECT TO HIS ACCOUNT WITH HSBC BANK, GENEVA, SWIT ZERLAND AND HE HAD ALSO FAILED ALTERNATIVELY TO FURNISH NOTARIZED CONS ENT LETTER CONFIRMING THAT HE DID NOT HAVE ANY BANK ACCOUNT WITH HSBC BAN K, GENEVA, SWITZERLAND. AFTER TAKING NOTE OF THIS NON-COMPLIAN CE ON THE PART OF THE ASSESSEE, THE TRIBUNAL HELD THAT THE ASSESSEE WAS M AKING AN ATTEMPT TO FORESTALL THE ENQUIRY OF THE REVENUE AND THE PENALT IES IMPOSED UNDER SECTION 271(1)(B) WERE CONFIRMED BY THE TRIBUNAL. T HE FACTS INVOLVED IN THE PRESENT CASE, ON THE OTHER HAND, ARE MATERIALLY DIFFERENT, INASMUCH AS, THOUGH THERE WAS NON-COMPLIANCE ON THE PART OF THE ASSESSEE TO TWO OF THE NOTICES ISSUED BY THE ASSESSING OFFICER UNDER S ECTION 142(1), HE COMPLIED WITH THE OTHER NOTICES ISSUED BY THE ASSES SING OFFICER UNDER SECTION 142(1) BY FURNISHING INFORMATION REQUIRED B Y THE ASSESSING OFFICER FOR THE PURPOSE OF ASSESSMENTS. AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE, THE ASSESSING OFFICER FOUND THE S AID INFORMATION FURNISHED BY THE ASSESSEE AS SUFFICIENT FOR THE PUR POSE OF ASSESSMENT AS NOTED IN PARAGRAPH NO. 7 OF THE ASSESSMENT ORDERS A ND COMPLETED THE ASSESSMENTS UNDER SECTION 153A/143(3) OF THE ACT. T HE INFORMATION 8 ITA NOS. 880-886/KOL/2016 ASSES SMENT YEARS: 20062007 TO 2012-2013 REQUIRED BY THE ASSESSING OFFICER FOR THE PURPOSE O F ASSESSMENTS THUS WAS DULY FURNISHED BY THE ASSESSEE IN ORDER TO ENABLE T HE ASSESSING OFFICER TO COMPLETE THE ASSESSMENTS UNDER SECTION 153A/143(3) OF THE ACT AND THERE WAS THUS SUBSTANTIAL COMPLIANCE MADE BY THE A SSESSEE AND IT WAS NOT THE CASE OF WILFUL DEFAULT COMMITTED BY THE ASS ESSEE TO JUSTIFY THE IMPOSITION OF PENALTY UNDER SECTION 271(1)(B) AS HE LD BY HONBLE DELHI BENCH OF THIS TRIBUNAL IN THE CASE OF AKHIL BHARTI YA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST (SUPRA). 8. AT THE TIME OF HEARING BEFORE US, THE LD. CIT(D. R.) HAS ALSO RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SE OF MANMOHAD DAS VS.- VISHNU DAS [AIR 1967 SC 643 IN SUPPORT OF THE REVENUES CASE AND CONTENDED THAT THE ORDINARY RULE OF CONSTRUCTION, A S HELD BY THE HONBLE SUPREME COURT, IS THAT THE PROVISION OF A STATUTE M UST BE CONSTRUED IN ACCORDANCE WITH THE LANGUAGE USED THEREIN UNLESS TH ERE ARE COMPELLING REASONS, SUCH AS, WHERE A LITERAL CONSTRUCTION WOUL D REDUCE THE PROVISION TO ABSURDITY OR PREVENT MANIFEST INTENTION OF THE L EGISLATURE FROM BEING CARRIED OUT. HOWEVER, AS RIGHTLY POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE FROM THE RELEVANT PROVISIONS OF SECTION 27 1(1)(B), THE LANGUAGE USED THEREIN ..................HE MAY DIRECT THAT SUCH PERSON SHALL PAY BY WAY OF PENALTY.......... IS SUCH THAT THE AUTHORITIES ARE GIVEN DISCRETION TO IMPOSE PENALTY. FURTHER, SECTION 273B PROVIDES THAT NO PENALTY SHALL BE IMPOSABLE ON THE PERSON OR THE ASSESSEE, AS THE CAS E MAY BE, FOR ANY FAILURE REFERRED TO IN THE PROVISIONS OF SECTION 27 1(1)(B) IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILURE. IN THIS REGARD, IT WOULD BE USEFUL TO REFER TO THE DECISION OF THE HONBLE SUPR EME COURT IN THE CASE OF HINDUSTAN STEEL VS.- STATE OF ORISSA 83 ITR 26, WH EREIN IT WAS HELD THAT EVEN IF A MINIMUM PENALTY IS PRESCRIBED, THE AUTHOR ITY COMPETENT TO IMPOSE THE PENALTY WILL BE JUSTIFIED IN REFUSING TO IMPOSE PENALTY, WHEN THERE IS A TECHNICAL OR VENIAL BREACH OF THE PROVIS IONS OF THE ACT. AS ALREADY NOTED BY US, SUBSTANTIAL COMPLIANCE WAS MAD E BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY FURN ISHING THE RELEVANT DETAILS AND INFORMATION REQUIRED BY THE ASSESSING O FFICER FOR THE PURPOSE 9 ITA NOS. 880-886/KOL/2016 ASSES SMENT YEARS: 20062007 TO 2012-2013 OF ASSESSMENT, AS IS EVIDENT FROM THE ASSESSMENT CO MPLETED BY THE ASSESSING OFFICER UNDER SECTION 153A/143(3) FOR ALL THE YEARS UNDER CONSIDERATION AND THEREFORE, THE DEFAULT ON THE PAR T OF THE ASSESSEE IN NOT COMPLYING WITH THE TWO NOTICES ISSUED BY THE ASSESS ING OFFICER UNDER SECTION 142(1) WAS MERELY OF A TECHNICAL OR VENIAL NATURE FOR WHICH THE IMPOSITION OF PENALTIES UNDER SECTION 271(1)(B) WAS NOT JUSTIFIED. AS SUCH, CONSIDERING ALL THE FACTS OF THE CASE, WE HOL D THAT THE PENALTIES IMPOSED BY THE ASSESSING OFFICER UNDER SECTION 271( 1)(B) AND CONFIRMED BY THE LD. CIT(APPEALS) FOR ALL THE YEARS UNDER CON SIDERATION ARE NOT SUSTAINABLE AND CANCELLING THE SAME, WE ALLOW THESE APPEALS FILED BY THE ASSESSEE. 9. IN THE RESULT, ALL THE SEVEN APPEALS FILED BY TH E ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH DAY OF DECEMBER, 2017. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 13 TH DAY OF DECEMBER, 2017 COPIES TO : (1) SHRI RANJIT KUMAR PAUL, THANA ROAD, GANGARAMPUR, DAKSHIN DINAJPUR-733 124 2) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-XXVII, KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTI PALLI, E.M. BYE-PASS, KOLKATA-700 107 (3) CIT(APPEALS)-21, KOLKATA, (4) CIT- , KOLKATA, (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/DDO, INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.