Amit Sabharwal, Ghaziabad V. ITO, Ward- 1(5), Ghaziabad

ITA 886/DEL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4057 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: DR RAKESH GUPTA; SOMIL AGGARWAL S
• Keywords: Initiation of penalty proceedings; Reasonable cause; Set aside
• Section: 143(3); 271D

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.886/DEL/2018 ASSESSMENT YEAR: 2009-10 AMIT SABHARWAL, C/O M/S ASHOK RAJ & ASSOCIATES, 19, NAVYUG MARKET, 2 ND FLOOR, GHAZIABAD. PAN: ALYPS1816K VS. ITO, WARD-1(5), GHAZIABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY : DR. RAKESH GUPTA & SHRI SOMIL AGGARWAL, ADVOCATES REVENUE BY : SHRI S.L. ANURAGI, SR. DR DATE OF HEARING : 06.05.2019 DATE OF PRONOUNCEMENT : .05.2019 ORDER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 13 TH OCTOBER, 2017 PASSED BY THE CIT(A), GHAZIABAD, RELATING TO A SSESSMENT YEAR 2009-10. 2. LEVY OF PENALTY OF RS.1 LAKH U/S 271B OF THE ACT BY THE ASSESSING OFFICER WHICH HAS BEEN UPHELD BY THE CIT(A) IS THE ONLY ISS UE RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 30 TH SEPTEMBER, 2009 DECLARING THE TOTAL INCOME OF RS.4 ,73,090/-. THE ASSESSING OFFICER CONCLUDED THE ASSESSMENT U/S 143(3) DETERMINING THE TOTAL ITA NO.886/DEL/2018 2 INCOME AT RS.30,13,660/- BY MAKING VARIOUS ADDITION S. THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A), BUT, WITHOUT ANY SUCCESS. SUBSE QUENTLY, THE ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE IT A NO.5413/DEL/2012, ORDER DATED 5 TH FEBRUARY, 2016, RESTORED THE ISSUE TO THE ASSESSIN G OFFICER WITH CERTAIN DIRECTIONS. THEREAFTER, THE ASSESSING OFFICER PASSED THE ORDER ON 21.11.2016 DETERMINING THE TOTAL INCOME AT RS.6,73,090/-. IN THE MEAN TIME, T HE ASSESSING OFFICER HAS INITIATED PENALTY PROCEEDINGS U/S 271B OF THE IT ACT ON THE G ROUND THAT THE ASSESSEE HAD SHOWN RECEIPTS FROM BOOKING (NET) AT RS.20,58,378/- WHERE AS THE GROSS FREIGHT OF RS.2,08,31,714/- WHICH WAS ADMITTED BY THE ASSESSEE TO HAVE BEEN RECEIVED. AGAINST THE ABOVE RECEIPTS, THE ASSESSEE HAS CLAIMED TO HAV E PAID AN AMOUNT OF RS.1,87,73,336/- AND THE NET RECEIPT WAS SHOWN AT R S.20,58,378/-. THE ASSESSING OFFICER, THEREFORE, ISSUED A SHOW CAUSE NOTICE ASKI NG THE ASSESSEE TO EXPLAIN AS TO WHY PENALTY U/S 271B SHOULD NOT BE LEVIED. REJECTING T HE VARIOUS EXPLANATIONS GIVEN BY THE ASSESSEE AND OBSERVING THAT THE ASSESSEE HAS AD MITTED TO HAVE RECEIVED GROSS FREIGHT OF RS.2,08,31,714/-, THE ASSESSING OFFICER, INVOKING THE PROVISIONS OF SECTION 44AB OF THE ACT AND THE PROVISIONS OF SECTION 271A OF THE ACT, LEVIED A PENALTY OF RS.1 LAKH. 4. BEFORE THE CIT(A), IT WAS SUBMITTED THAT THE ORI GINAL ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER ON 29 TH DECEMBER, 2011 WHEREIN SOME ADDITIONS WERE MADE BY THE ASSESSING OFFICER WHICH WAS CONFIR MED BY THE CIT(A) AND ON FURTHER APPEAL BY THE ASSESSEE, THE TRIBUNAL RESTOR ED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER, AT THE T IME OF PASSING THE ORDER, DID NOT ITA NO.886/DEL/2018 3 IMPOSE ANY PENALTY U/S 271B. THE ASSESSING OFFICER HAS ISSUED THE FIRST PENALTY NOTICE ON 24 TH AUGUST, 2016 AND LEVIED PENALTY OF RS.1 LAKH WHICH IS BARRED BY LIMITATION. IT WAS FURTHER ARGUED THAT PENALTY U/S 271B WAS FOR NON-AUDITING OF ACCOUNTS AND IT HAS NO RELEVANCE WITH ADDITION OF I NCOME. SINCE IT IS BARRED BY LIMITATION, THEREFORE, THE PENALTY LEVIED BY THE AS SESSING OFFICER DESERVES TO BE DELETED. 5. HOWEVER, THE LD.CIT(A) WAS NOT SATISFIED WITH TH E ARGUMENTS ADVANCED BY THE ASSESSEE. SHE NOTED THAT THE ASSESSEE FILED THE RET URN OF INCOME ON 30 TH SEPTEMBER, 2016 ALONG WITH UNAUDITED PROFIT & LOSS ACCOUNT AND BALANCE SHEET. SINCE THE ASSESSEE FAILED TO GET ITS ACCOUNTS AUDITED AS PER THE PROVISIONS OF SECTION 44AB AND SINCE THERE IS NO LIMITATION FOR INITIATION OF PENA LTY U/S 271B AND SUCH PENALTY NEED NOT BE INITIATED DURING THE COURSE OF ANY ASSESSMEN T PROCEEDINGS ONLY, THE LD.CIT(A) CONFIRMED THE PENALTY SO LEVIED BY THE ASSESSING OF FICER. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE, REFERRED TO TH E DECISION OF THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. HISSARIA BROS REPORTED IN 291 ITR 0244 AND SUBMITTED THAT THE HON'BLE HIGH COURT IN THE SA ID DECISION HAS HELD THAT PENALTY PROCEEDINGS FOR DEFAULT UNDER SS.269SS AND 269T NOT BEING RELATED TO THE ASSESSMENT PROCEEDINGS, COMPLETION OF APPELLATE PROCEEDINGS AR ISING OUT OF THE ASSESSMENT PROCEEDINGS OR OTHER PROCEEDINGS HAVE NO RELEVANCE AND THE LIMITATION UNDER S. ITA NO.886/DEL/2018 4 275(1)(C) APPLIES TO SUCH PROCEEDINGS AND, THEREFOR E, IMPUGNED PENALTY ORDERS UNDER S. 271D PASSED BEYOND 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ASSESSMENTS WERE COMPLETED WERE BARRED BY TIME . HE SUBMITTED THAT THE SLP FILED BY THE REVENUE WAS DISMISSED BY THE HON'BLE SUPREME COURT AS REPORTED IN 386 ITR 0719 . 8. REFERRING TO THE DECISION OF THE COCHIN BENCH OF THE TRIBUNAL IN THE CASE OF NOBLE PICTURES VS. JCIT REPORTED IN 90 ITD 248 , HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HAS HELD THAT THERE SHOULD BE A REASO NABLE TIME WITHIN WHICH PENALTY PROCEEDING IS TO BE INITIATED OR TO BE COMPLETED. E VEN IF A TIME IS NOT PRESCRIBED UNDER THE LAW, HOWEVER, THE PENALTY CANNOT HANG ON THE HE AD OF AN ASSESSEE AS SWORD OF DAMOCLES INDEFINITELY AND IT SHOULD BE INITIATED AN D COMPLETED WITHIN A REASONABLE TIME. REFERRING TO THE DECISION OF THE HON'BLE CAL CUTTA HIGH COURT IN THE CASE OF INDIAN HANDLOOM TEXTILES VS. ITO REPORTED IN 68 ITD 0560 , HE SUBMITTED THAT THE PENALTY PROCEEDINGS U/S 271B INITIATED 34 MONTHS AF TER THE COMPLETION OF ASSESSMENT WAS HELD TO BE INVALID. HE ACCORDINGLY SUBMITTED T HAT SINCE, IN THE INSTANT CASE, THE PENALTY PROCEEDINGS HAVE BEEN INITIATED AFTER A PER IOD OF MORE THAN FOUR YEARS, THEREFORE, THE PENALTY SO LEVIED BY THE ASSESSING O FFICER AND UPHELD BY THE CIT(A) IS NOT JUSTIFIED. HE ALSO RELIED ON THE DECISION OF T HE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. NHK JAPAN CORPORATION REPORTED IN 305 ITR 1 32. 9. THE LD. DR, ON THE OTHER HAND, HEAVILY RELIED ON THE ORDER OF THE CIT(A). HE SUBMITTED THAT THE TURNOVER OF THE ASSESSEE IS MORE THAN THE PRESCRIBED LIMIT AND, THEREFORE, THE ASSESSEE SHOULD HAVE GOT ITS ACCOUNT S AUDITED. SINCE THE ASSESSEE HAS ITA NO.886/DEL/2018 5 FAILED TO COMPLY WITH THE PROVISIONS OF SECTION 44A B AND THERE WAS NO REASONABLE CAUSE FOR NOT GETTING ITS ACCOUNTS AUDITED, THEREFO RE, THE CIT(A) WAS FULLY JUSTIFIED IN UPHOLDING THE PENALTY SO LEVIED BY THE ASSESSING OF FICER U/S 271B OF THE ACT. REFERRING TO THE DECISION OF THE HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF RAMA MEDICAL STORE VS. CIT 2016-TIOL-2750, HE SUBMITTED THAT FOR THE PURPOSE OF IMPOSING PENALTY U/S 271B, ITS INITIATION IN THE CO URSE OF THE ASSESSMENT PROCEEDINGS IS NOT NECESSARY WITHIN THE MEANING OF SECTION 275( 1)(C). 10. I HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH T HE SIDES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. I HAVE ALSO CONSIDERED TH E VARIOUS DECISIONS CITED BEFORE ME. I FIND THE ASSESSING OFFICER COMPLETED THE ORIGINAL ASSESSMENT U/S 143(3) ON 29 TH DECEMBER, 2011 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.30,13,680/-. AT THAT TIME, AS APPEARS FROM PARA 2 ONWARDS, THE ASSE SSING OFFICER HAS MENTIONED IN THE ASSESSMENT ORDER THAT THE GROSS RECEIPT IS AT RS.2, 29,72,281/- WHEREAS AS PER THE ASSESSEE THE GROSS RECEIPTS WERE RS.2,08,31,714/-. HOWEVER, THE ASSESSING OFFICER HAS NOT INITIATED PENALTY PROCEEDINGS U/S 271B OF T HE ACT EITHER DURING THE COURSE OF INITIAL ASSESSMENT PROCEEDINGS OR THEREAFTER. ONLY WHEN THE MATTER WAS SET ASIDE BY THE TRIBUNAL TO THE FILE OF THE ASSESSING OFFICER T HAT THE ASSESSING OFFICER INITIATED THE PENALTY PROCEEDINGS U/S 271B OF THE IT ACT BY I SSUE OF NOTICE ON 24 TH AUGUST, 2016. THUS, THE PENALTY NOTICE WAS ISSUED AFTER MO RE THAN 4 YEARS FROM THE END OF THE ORIGINAL ASSESSMENT. AS PER THE PROVISIONS OF SECTION 275(1)(C), NO ORDER IMPOSING A PENALTY UNDER THIS CHAPTER SHALL BE PASS ED IN ANY CASE, AFTER THE EXPIRY OF ITA NO.886/DEL/2018 6 THE FINANCIAL YEAR IN WHICH THE PROCEEDINGS, IN THE COURSE OF WHICH ACTION FOR THE IMPOSITION OF PENALTY HAS BEEN INITIATED, ARE COMPL ETED OR SIX MONTHS FROM THE END OF THE MONTH IN WHICH ACTION FOR IMPOSITION OF PENALTY IS INITIATED, WHICHEVER PERIOD EXPIRES LATER. AS PER THE VARIOUS DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE, PENALTY IS NOT LEVIABLE WHERE THE PENALTY PROCEEDINGS WERE NOT INITIATED LONG AFTER THE COMPLETION OF THE ASSESSMENT AND THE ASSE SSMENT ORDER WAS SILENT ABOUT THE LEVY OF PENALTY U/S 271B OF THE ACT. SINCE THE ASSE SSING OFFICER IN THE INSTANT CASE HAS INITIATED THE PENALTY PROCEEDINGS AFTER A PERIO D OF MORE THAN 4 YEARS FROM THE DATE OF ORIGINAL ASSESSMENT ORDER AND THERE WAS NO SUCH MENTION OF THE INITIATION OF PENALTY PROCEEDINGS U/S 271B OF THE ACT AND THE FAC T OF HIGHER GROSS RECEIPT WAS VERY MUCH AVAILABLE TO THE ASSESSING OFFICER WHICH HAS B EEN MENTIONED IN THE BODY OF THE ORIGINAL ASSESSMENT ORDER, THEREFORE, THE PENALTY P ROCEEDING INITIATED BY THE ASSESSING OFFICER IN THE INSTANT CASE IN MY OPINION IS BARRED BY LIMITATION. THE DECISION RELIED ON BY THE LD. DR WILL NOT HELP THE REVENUE SINCE TH E SAME RELATES TO INITIATION OF PENALTY PROCEEDINGS U/S 271B IN THE COURSE OF ASSES SMENT PROCEEDINGS. THE DECISION DOES NOT SPEAK OF LEVY OF PENALTY AFTER INORDINATE DELAY. IN VIEW OF THE ABOVE DISCUSSION, I AM OF THE CONSIDERED OPINION THAT THE PENALTY PROCEEDINGS INITIATED AFTER A LONG GAP OF MORE THAN 4 YEARS FROM THE DATE OF ORIGINAL ASSESSMENT ORDER IS NOT SUSTAINABLE IN LAW BEING BARRED BY LIMITATION. THER EFORE, THE ORDER OF THE CIT(A) IS SET ASIDE AND THE GROUNDS RAISED BY THE ASSESSEE ARE AL LOWED. ITA NO.886/DEL/2018 7 11. IN THE RESULT, THE APPEAL FILED BY THE AS SESSEE IS ALLOWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 1 4.05.2019. SD/- (R.K. PANDA) ACCOUNTANT MEMBER DATED: 14 TH MAY, 2019 DK COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI