M/s Caktus Properties (P) Ltd., New Delhi V. ITO, New Delhi

ITA 891/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52561 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 11-08-2011
• Assessment Year: 2002-2003
• Appeal Filed On: 15-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K SAMPATH SHRI PAWAN SALDI
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B NEW DELHI DELHI BENCH : B NEW DELHI DELHI BENCH : B NEW DELHI DELHI BENCH : B NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMEBR AND SHRI B.C. MEENA, ACCOUNTANT MEMBER I.T.A NO. 891/DEL/11 ASSTT. YEAR 2002 - 03 CAKTUS PROPERTIES (P) LTD. C/O PAWAN SALDI, D-125, SANGAM APARTMENTS, PLOT NO. 23, SECTOR-9, ROHINI, NEW DELHI. PAN AAACC5473C VS. ITO, WARD 3 (2) NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI K. SAMPATH, ADVOCATE/ SHRI PAWAN SALDI, ADVOCATE RESPONDENT BY: SHRI ROHIT GARG, SR. DR ORDER PER RAJPAL YADAV, JM: PER RAJPAL YADAV, JM: PER RAJPAL YADAV, JM: PER RAJPAL YADAV, JM: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LD. CIT(A) DATED 10.12.2010 PASSED FOR ASTT. YEAR 2002-03. THE SOLIT ARY GRIEVANCE OF THE ASSESSEE IS THAT LD. CIT(A) HAS ERRED IN CONFIRMING THE IMPOSIT ION OF PENALTY AMOUNTING TO ` 50,000/- U/S 271(1)(B) OF THE INCOME TAX ACT. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HA S FILED ITS RETURN OF INCOME ON 17.10.2002 DECLARING A LOSS OF ` 1,37,370/-. THE AO HAS PASSED AN EX PARTE ASSESSMENT U/S 144 ACCORDING TO HIS BEST JUDGMENT O N 11.2.2005. HE DETERMINED THE TAXABLE INCOME OF THE ASSESSEE AT ` 26,33,570/-. TH E AO HAS INITIATED PENALTY PROCEEDING U/S 271(1)(B) OF THE INCOME TAX ACT ON A CCOUNT OF ASSESSEES NON APPEARANCE IN RESPONSE TO HIS NOTICES ISSUED U/S 14 2(1) AND 143(2) OF THE INCOME TAX ACT. HE ISSUED A SHOW CAUSE NOTICE U/S 274 INVITING ASSESEES EXPLANATION AS TO WHY A PENALTY FOR NON-APPEARANCE OF THE ASSESSEE IN RESPO NSE TO THE NOTICES ISSUED BY THE ITA NO. 891/DEL/11 ASSTT. YEAR 2002-03 2 AO BE NOT IMPOSED UPON IT. THE CASE OF THE ASSESSEE IS THAT NOTICE U/S 142(1) WAS SENT ON THE FOLLOWING ADDRESS :- 513/8, SOHNA ALWAR ROAD , CIVIL LINES, GURGAON (HR). IT IS THE RESIDENTIAL ADDRESS OF ITS DIRECTORS WHEREAS TH E ADDRESS OF THE ASSESSEE IS 2753/4, JORAWAR SINGH MARG, NEW DELHI. NO NOTICE ON THIS A DDRESS WAS EVER SERVED UPON THE ASSESSEE. THE CONTENTION OF THE ASSESSEE DID NOT ME ET THE APPROVAL OF LD. AO AS WELL AS OF LD. CIT(A). A PENALTY OF RS. 50,000/- HAS BE EN IMPOSED WHICH HAS BEEN CONFIRMED BY THE LD. CIT(A). 3. WITH THE ASSISTANCE OF LD. REPRESENTATIVE WE HA VE GONE THROUGH THE RECORD CAREFULLY. THE ISSUE REGARDING QUANTUM ADDITION HAS BEEN SET ASIDE BY THE ITAT FOR READJUDICATION TO THE FILE OF AO, BECAUSE TRIBUNAL WAS SATISFIED THAT AO DID NOT SENT THE NOTICE ON THE CORRECT ADDRESS. IT HAS BEEN DEMONST RATED BEFORE US ALSO THAT NOTICE WAS SENT TO THE ADDRESS OF PRINCIPAL OFFICER. LD. FIRST APPELLATE AUTHORITY HAS ACCEPTED THE SERVICE OF THIS NOTICE AND CONCLUDED THAT ASSESSEE HAS COMMITTED A DEFAULT WITHIN THE MEANING OF SECTION 271(1)(B) OF THE INCOME TAX ACT AND DESERVES TO BE VISITED WITH PENALTY. WE HAVE SEEN THE ACKNOWLEDGMENT OF THE INC OME TAX RETURN FILED BY THE ASSESSEE FOR ASSTT. YEAR 2000-01. IT HAS MENTIONED THE ADDRESS OF ZORAWAR SINGH MARG. THE ASSESSEE HAS FURTHER POINTED OUT THAT THE ADDRESS OF ZORAWAR SINGH MARG WAS ITS ADDRESS FROM THE VERY BEGINNING AND NOTICES ISSUED ON THIS ADDRESS WERE DULY SERVED UPON IT. CONSIDERING THE FACTS AND CIRCUMSTA NCES WE ARE OF THE VIEW THAT ASSESSEE DOES NOT DESERVE TO BE VISITED WITH PENALT Y U/S 271 (1)(B) OF THE INCOME TAX ACT. WE ALLOW THE APPEAL OF ASSESSEE AND DELETE THE PENALTY. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH AUGUST, 2011. SD/ SD/ SD/ SD/- -- - SD / SD/SD/ SD/- -- - [B.C. [B.C. [B.C. [B.C. MEENA] MEENA] MEENA] MEENA] [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] [RAJPAL YADAV] ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER DATED: 19 TH AUGUST, 2011 ITA NO. 891/DEL/11 ASSTT. YEAR 2002-03 3 VEENA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT