GENESIS MOTELS P.LTD, MUMBAI V. ACIT CC 32, MUMBAI

ITA 935/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1873 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2003-2004
• Appeal Filed On: 10-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Keywords: Search and seizure
• Section: 142(1); 153A; 132; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER S.NO. I.T.A. NO. ASSTT. YEAR. 1. 935/MUM/2012 2003-04 2. 936/MUM/2012 2004-05 3. 937/MUM/2012 2006-07 4. 938/MUM/2012 2007-08 M/S GENESIS MOTELS P. LTD., ASSTT. COMMISSIONER OF S/4, 101, SUNDER NAGAR, VS. INCOME-TAX, S.V. ROAD, MALAD (WEST), CENTRAL CIRCLE-32, MUMBAI 400064. MUMBAI. PAN : AAACG 1873E. APPELLANT. RESPONDENT . APPELLANT BY : NONE. RESPONDENT BY : SHRI D.K. SINHA . DATE OF HEARI NG : 12-02-2013 DATE OF PRONOUNCE MENT : 12 -02-2013 O R D E R PER I.P. BANSAL, J.M. ALL THESE APPEALS ARE FILED BY THE ASSESSEE. THEY A RE DIRECTED AGAINST ORDER DATED 2 ND JANUARY, 2012 PASSED BY CIT(APPEALS) SIMULTANEOUSL Y FOR SIX ASSESSMENT YEARS FALLING IN THE BLOCK PERIOD I.E. ASSESSMENT Y EAR 2002-03 TO ASSESSMENT YEAR 2008-09. THE YEARS UNDER CONSIDERATION ARE ASSESSM ENT YEARS 2003-04, 2004-05, 2006-07 AND 2007-08. GROUND OF APPEAL IN ALL THE AP PEALS IS COMMON AND READ AS UNDER : 2 ITA NOS. 935 TO 938/MUM/2012 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE PENALTY OF RS.10,000/- U/S 271(1)(B) OF THE ACT . 2. THE IMPUGNED ASSESSMENTS ARE FRAMED UNDER THE PR OVISIONS OF SECTION 144 READ WITH SECTION 153A OF THE INCOME TAX ACT, 1961 (ACT). A SEARCH AND SEIZURE ACTION U/S 132 WAS CARRIED OUT ON 26 TH NOVEMBER, 2007 IN THE CASE OF MR. NAND KUMAR KALE AND HIS GROUP ENTITIES WHICH INCLUDED TH E PRESENT ASSESSEE AS WELL. ASSESSMENT PROCEEDINGS WERE INITIATED VIDE NOTICE D ATED 8 TH DECEMBER, 2009 ISSUED U/S 143(2) OF THE ACT AND AS A RESULT OF NON -COMPLIANCE, THE IMPUGNED ASSESSMENTS WERE FRAMED. IT MAY ALSO BE MENTIONED H ERE THAT FINAL OPPORTUNITY WAS ALSO GIVEN BY THE AO VIDE SHOW CAUSE NOTICE/LETTER DATED 16 TH DECEMBER,2009 IN WHICH IT WAS PROPOSED TO FRAME ASSESSMENT U/S 144 I N CASE OF NON-COMPLIANCE WITHIN THE STIPULATED TIME. THE AO INITIATED PENALT Y PROCEEDINGS U/S 271(1)(B) AND HE FOUND THAT THE ASSESSEE WAS DEFAULTER OF NON APP EARANCE OR NON-COMPLIANCE OF TWO NOTICES, THE DETAILS OF WHICH ARE AS UNDER : S.NO. SECTION UNDER WHICH DATE OF NOTICE DATE OF FIXATION OF ____ NOTICE WAS SENT. HEARING. 1. 143(2) 8 TH DEC., 2009 14 TH DEC., 2009. 2. 142(1) 10 TH DEC., 2009 3. ACCORDINGLY, FOR EACH DEFAULT IN EACH OF THE ASS ESSMENT FALLING UNDER THE BLOCK PERIOD, PENALTY AT THE RATE OF RS.10,000/- WA S IMPOSED. THE LEVY OF PENALTY WAS CONTESTED IN THE APPEALS FILED BEFORE THE CIT(A PPEALS) IN EACH OF THE SIX ASSESSMENT YEARS FALLING UNDER THE BLOCK PERIOD. SO FAR AS IT RELATES TO PENALTY LEVIED IN RESPECT OF NOTICE U/S 142(1) DATED 10 TH DECEMBER, 2009, IT WAS THE CONTENTION OF THE ASSESSEE THAT NO SUCH NOTICE WAS ISSUED. THEREFORE,, LEVY OF PENALTY FOR THE SAID DEFAULT IS BAD IN LAW. THE LE ARNED CIT(APPEALS) HAS FOUND SUCH CONTENTION OF THE ASSESSEE AS CORRECT AND HAS DELETED THE SAID PENALTY. THE LEARNED CIT(APPEALS) HAS ALSO DELETED THE PENALTY I N RESPECT OF ASSESSMENT YEARS 3 ITA NOS. 935 TO 938/MUM/2012 2002-03, 2005-06 AND 2008-09 AND THUS PENALTY WHICH ARE SUSTAINED ARE IN RESPECT OF AFOREMENTIONED APPEALS WHICH IS IN RESPECT OF NO TICE ISSUED U/S 143(2) DATED 8 TH DECEMBER, 2009 WHICH IS STATED AT SR. NO. 1 IN THE AFOREMENTIONED CHART. 4. TO CONTEST THE LEVY OF PENALTY FOR THE DEFAULT O F NOTICE ISSUED U/S 143(2) DATED 8 TH DECEMBER, 2009 IT WAS SUBMITTED BY THE ASSESSEE IN THE STATEMENT OF FACTS FILED BEFORE THE CIT(APPEALS) THAT THE SAID NOTICE WAS ISSUED TO FIX THE HEARING ON 14 TH DECEMBER, 2009 ON WHICH DATE THE AUTHORIZED REPRES ENTATIVE OF THE ASSESSEE ATTENDED THE PROCEEDINGS AND WAS VERBALLY CONVEYED THAT A DETAILED SHOW CAUSE NOTICE WAS BEING ISSUED TO WHICH THE REPLY SHOULD BE FILED. SUCH NOTICE WAS ALSO ISSUED SUBSEQUENTLY ON 16 TH DECEMBER, 2009 TO WHICH THE REPLY WAS FILED BY THE ASSESSEE ON 29 TH DECEMBER, 2009. IT WAS ALSO STATED THAT THE DELAY IN FILING THE REPLY TO SHOW CAUSE NOTICE WAS ON ACCOUNT OF REASONABLE C AUSE. IN THE PROCEEDINGS BEFORE THE CIT(APPEALS) IT WAS EXPLAINED THAT IN TH E SHOW CAUSE NOTICE ISSUED BY THE AO, THE ASSESSEE WAS REQUIRED TO FILE ALL THE D ETAILS WITHIN FIVE DAYS AND FIVE DAYS WERE NOT SUFFICIENT TO COMPLY WITH ALL THE REQ UIREMENTS. IT WAS SUBMITTED THAT ACCORDING TO THE JUDICIAL PRONOUNCEMENTS, THE ASSES SEE MUST BE GIVEN REASONABLE OPPORTUNITY WHICH IN NORMAL CIRCUMSTANCES SHOULD NO T BE LESS THAN 10 TO 15 DAYS AND THE ASSESSEE HAD FILED REPLY TO THE SHOW CAUSE NOTICE ON 29 TH DECEMBER, 2009 I.E. WITHIN A REASONABLE PERIOD. THE ASSESSMENT HAS BEEN FRAMED BY THE AO ON 31 ST DECEMBER, 2009 BY TOTALLY IGNORING THE SUBMISSIONS MADE IN COMPLIANCE TO SHOW CAUSE NOTICE. IT WAS SUBMITTED THAT ASSESSMENT PROC EEDINGS WERE CARRIED OUT IN HASTE AS THEY WERE STARTED ONLY ON THE 8 TH DECEMBER, 2009 AND ASSESSMENTS WERE COMPLETED BY 31 ST DECEMBER, 2009. IT WAS SUBMITTED THAT THE ASSESSEE DID NOT COMMIT ANY DEFAULT. HOWEVER, LEARNED CIT(APPEALS) H AS UPHELD THE PENALTY FOR DEFAULT OF NOTICE U/S 143(2) AND THE ASSESSEE IS AG GRIEVED WITH SUCH SUSTENANCE OF PENALTY AND HAS FILED THE AFOREMENTIONED APPEALS. 4 ITA NOS. 935 TO 938/MUM/2012 5. NOTICE OF HEARING WAS GIVEN TO THE ASSESSEE FIXI NG THE DATE OF HEARING ON 12 TH FEBRUARY, 2013. HOWEVER, NONE WAS PRESENT. AS THESE ARE SMALL APPEALS AND FACTS ARE AVAILABLE ON RECORD, WE PROCEED TO DECIDE THESE APPEALS EXPARTE QUA THE ASSESSEE ON MERITS AFTER HEARING THE LEARNED DR. 6. LEARNED DR RELIED UPON THE ORDER PASSED BY THE L EARNED CIT(APPEALS) AND CONTENDED THAT IN VIEW OF THE DEFAULT COMMITTED BY THE ASSESSEE, LEARNED CIT(APPEALS) HAS RIGHTLY UPHELD THE PENALTY IN RESP ECT OF AFOREMENTIONED YEARS. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LEARNED DR. WE HAVE ALSO CAREFULLY GONE THROUGH THE ASSESSMENT ORDER, ORDER LEVYING THE PENALTY AND THE ORDER PASSED BY LEARNED CIT(APPEALS). IT HAS ALREAD Y BEEN MENTIONED THAT IN THE STATEMENT OF FACTS THE ASSESSEE HAD SUBMITTED THAT THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAD ATTENDED THE PROCEEDINGS ON 14 TH DECEMBER, 2009 WHEN HE WAS TOLD THAT A DETAILED SHOW CAUSE NOTICE IS BEING ISS UED. THEREFORE, IT IS NOT A CASE WHERE THE ASSESSEE DID NOT WILLFULLY COMPLY WITH TH E NOTICE ISSUED BY THE DEPARTMENT. THIS CONTENTION OF THE ASSESSEE IS FURT HER SUBSTANTIATED WITH THE SHOW CAUSE NOTICE ISSUED BY THE AO ON 16 TH DECEMBER, 2009 FOR WHICH THE REPLY WAS SOUGHT TO BE FILED WITHIN FIVE DAYS. THE ASSESSEE A LSO HAD FILED THE REPLY ON 29 TH DECEMBER, 2009. THE QUESTION IN THE PRESENT APPEALS IS ONLY REGARDING THE DEFAULT OF ASSESSEE ON 14 TH DECEMBER, 2009. IN THE STATEMENT OF FACTS IT WAS C LEARLY SUBMITTED THAT AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE WAS PRESENT ON THE SAID DATE. THIS STATEMENT OF FACTS HAS NOT BEEN CONTROVE RTED BY THE LEARNED CIT(APPEALS). IF IT IS CORRECT THEN THE ASSESSEE CA NNOT BE SAID TO HAVE DEFAULTED FOR THE SAID NOTICE AND THE CONTENTION OF THE ASSESSEE THAT AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED ON THE SAID DATE AND WAS VERB ALLY TOLD THAT DETAILED SHOW CAUSE NOTICE WILL BE ISSUED IS FURTHER SUBSTANTIATE D BY ISSUING A DETAILED SHOW CAUSE 5 ITA NOS. 935 TO 938/MUM/2012 NOTICE ON 16 TH DECEMBER, 2009. THEREFORE, SUSTENANCE OF PENALTY F OR DEFAULT OF NOTICE U/S 143(2) DATED 8 TH DECEMBER, 2009 IS UNJUSTIFIED AND IS REQUIRED TO B E DELETED. ACCORDINGLY PENALTY LEVIED FOR ALL THESE F OUR YEARS IS DELETED. 8. BEFORE PARTING WE MAY MENTION HERE THAT IN PARA 12.1 OF THE ORDER OF CIT(APPEALS) IN THE LAST LINE THERE IS A TYPING MI STAKE AND ASSESSMENT YEAR WRITTEN AS 2002-03 MUST BE READ AS 2003-04 AS FOR ASSESSMEN T YEAR 2002-03 LEARNED CIT(APPEALS) HAS ALREADY ALLOWED THE APPEAL OF THE ASSESSEE VIDE PARA 7 OF THE IMPUGNED ORDER. 9. WITH THESE OBSERVATIONS, ALL THE APPEALS FILED B Y THE ASSESSEE ARE ALLOWED. . ORDER PRONOUNCED ON THIS 12 TH DAY OF FEBRUARY, 2013. SD/- SD/- (RAJENDRA SINGH) (I.P. BANSAL) ACCOUNTANT MEMBER JUDIC IAL MEMBER MUMBAI, DATED: 12 TH FEBRUARY, 2013. WAKODE COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, G-BENCH. (TRUE COPY) BY ORDER ASSTT. REGIST RAR, ITAT, MUMBAI BENCHES, MUMB AI.