Purshottam Das Gupta, Kanpur V. Astt. Commissioner of Income Tax, Kanpur

ITA 97/LKW/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4131 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-06-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 02-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI. P. K. BANSAL, ACCOUNTANT MEMBER AND SHRI ABY T VARKEY, JUDICIAL MEMBER ITA NO.94 TO 96/LKW/2016 ASSESSMENT YEAR:2009- 10, 2010-11 & 2011-12 SMT. LAXMI DEVI GUPTA PROP. M/S SUPER CHEM. 54/27, NAYAGANJ KAN P UR V. ACIT CENTRAL CIRCLE-1 KANPUR T AN / PAN:AALPD7390P (APPELLANT) (RESPONDENT) ITA NO.97 AND 98/LKW/2016 ASSESSMENT YEAR:2010-11 & 2011-12 PURSHOTTAM DAS GUPTA 54/27, NAYAGANJ KANPUR V. ACIT CENTRAL CIRCLE-1 KANPUR TAN/PAN:ABVPG8498G (APPELLANT) (RESPONDENT) ITA NO.99 TO 104/LKW/2016 ASSESSMENT YEAR:2006-07 TO 2011-12 DINESH KUMAR GUPTA 54/27, NAYAGANJ KANPUR V. ACIT CENTRAL CIRCLE-1 KANPUR TAN/PAN:AAQPG9711Q (APPELLANT) (RESPONDENT) A P P ELLANT B Y : SHRI RAKESH GAR G , ADVOCATE RES P ONDENT B Y : SHRI AMIT NI G AM, D.R. DATE OF HEARING: 09 06 2016 DATE OF PRONOUNCEMENT: 29 07 2016 O R D E R :-2-: PER ABY T. VARKEY, J.M: THESE APPEALS ARE PREFERRED BY THREE DIFFER ENT ASSESSEES AGAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A)-IV, KANPUR. 2. SINCE THE ISSUE INVOLVED IN THESE APPEALS ARE COMMON, WE DISPOSE THESE APPEALS TOGETHER BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. HOWEVER, WE TAKE THE APPEAL IN ITA NO.94/LKW/2016 IN THE CASE OF SMT. LAXMI DEVI GUPTA AS THE LEAD CASE TO DECIDE THE COMMON ISSUE. 3. THE ISSUE INVOLVED IN THIS APPEAL RELATES TO THE LEVY OF PENALTY IMPOSED UNDER SECTION 271(1)(B) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED IN SHORT 'THE ACT'). 4. THE BRIEF FACTS OF THE CASE ARE TH AT THE ASSESSEE F ILED ITS RETURN ON 31.3.2011. THE ASSESSING OFFICE R ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT ON 16.1.2013 FOR COMPLIAN CE ON 24.1.2013, BUT NO COMPLIANCE WAS MADE BY THE ASSESSEE. THEREA FTER, THE ASSESSING OFFICER ISSUED NOTICE UNDER SECTION 1 43(2) OF THE ACT ON 8. 3.2013 FOR COMPLIANCE ON 12.3.2013. THEREAFTER PENALTY NOTICE UNDER SECTION 271(1)(B) OF THE ACT DATED 1.3.2013 WAS ISSUED FOR COMP LIANCE ON 8.3.2013, BUT NO COMPLIANCE WAS MADE BY THE ASSESSEE. SINCE THERE WAS NO COMPLIANCE ON THE PART OF THE ASSESSEE, THE ASSESSING OFFICER ISSUED SHOW CAUSE NOTICES DATED 31.3.2013 AND 7.8.2013 FOR COMPLIANCE ON 30.4.2013 AND 19.8.2013 RESPECTIVELY, IN COMPLIANCE TO WHICH THE ASSESSEE FILED REPLY ON 16.8.2013 AND AFTER CONSIDERING THE REPLY OF THE ASSESSEE, THE ASSESSING OFFICER NOTED THAT LOOKING TO THE CIRCUM STANCES, IT APPEARS THAT ASSESSEE IS NOT INTERESTED TO TAKE UP THE NOTICE UNDER SECTION 142(1) DATED 16.1.2013 BECAUSE THE AS SESSEE DID NOT REPLY PART/FULL COMPLIANCE OF NOTICE. AS A RESULT OF WHICH AN ORDER UNDER SECTION 153C READ WITH SECTION 153A OF THE INCOME-TA X ACT, 1961 HAD TO BE PASSED ON :-3-: 31.3.2013. HENCE, THE REPLY SUBMITTED BY THE ASSESSEE IS NOT TENABLE. THEREAFTER HE WAS OF THE OPINION THAT IT IS A FIT CASE FO R LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE ACT FOR NON-COMPLI ANCE OF NOTICE UNDER SECTION 142(1) OF THE ACT DATED 16.1.2013. 5. HERE WE WOULD LIKE TO POINT OU T THAT FROM A READING OF THE AFORESAID REASON GIVEN BY THE ASSE SSING OFFICER TO IMPOSE PENALTY MAKES IT CLEAR THAT THE ASSESSING OFFICER ACKNOWLEDGED THAT FOR HIS NOTICE UNDER SECTION 142(1) OF THE ACT DATED 16.1.2013, ASSESSEE DID REPLY BUT IT WAS ONLY A PART REPLY AND NOT FULL COMPLIANCE OF THE SAID NOTICE, WHICH MEANS THAT THE ASSESS EE/LD. COUNSEL FOR THE ASSESSEE HAD IN FACT FILED THE REPLY TO THE NOTICE UNDER SE CTION 142(1) OF THE ACT BUT NOT TO THE FULL SATISFACTION OF THE ASSESSING OFFICER. WHEN THE FACT REMAINS THAT THE ASSESSEE HAD RESPONDE D TO THE NOTICE OF THE ASSESSING OFFICER UNDER SECTIO N 142(1) OF THE ACT AND REPL IED TO IT, PENALTY UNDER SECTION 271(1)(B) OF THE ACT IS NOT ATTRACTED MERELY BECAUSE THE ASSESSING OFFICER IS NOT FULLY SATISFIE D WITH THE REPLY OF THE ASSESSEE. THUS WE ARE OF THE OPIN ION THAT SINCE THE ASSESSEE HAD IN FACT REPLIED, WHICH HAS BEEN ACKNOWLEDGED BY THE ASSESSING OFFICER AND THE CASE OF THE ASSESSING OFFICER IS THAT HE IS NOT SATISFIED FULLY CANNOT BE THE BASIS FOR LEVY OF PENALTY UNDER SECTION 271(1)(B) OF THE AC T. THIS CONCLUSION OF OURS IS FURTHER STRE NGTHENED BY THE OBSERVATIO N OF THE LD. CIT(A) IN PARA 6 OF HIS IMPUGNED ORDER, WHEREIN HE OBSERVED THAT THUS IT MAY BE SEEN THAT THE APPELLANT HA S ALWAYS RAISED OBJECTIONS TO THE PROCEEDINGS OF ASSESSMENT AND HAD NEVER COMPLIED WITH THE NOTICE UNDER SECTION 142(1) DATED 16.1.2013 FROM THE SAID OBSERVATION, IT CAN BE INFERRED THAT THE LD. CIT(A) ALSO TAKE S NOTE THAT THE ASSE SSEE HAD IN FACT PARTICIPATED IN THE PROCEEDINGS BEFORE THE ASSESSING OFFICER BUT OBJECTED TO THE PROCEEDINGS INITIATED AGAINS T HER, WHICH MEANS THAT BOTH THE AUTHORITIES ARE NOT SATISFIED WITH TH E KIND OF COMPLIANCE/ CONDUCT OF THE ASSESSEE TO THE STATUTORY NOTICE ISSUED AGAINST HER. ACCORDING TO THE :-4-: ASSESSING OFFICER, THE REPLY WAS PA RT COMPLIANCE TO THE NOTICE AND ACCORDING TO THE LD. CIT(A), THE AS SESSEE WAS RAISING OBJECTIONS ONLY DURING PROCEEDINGS BEFORE THE ASSESSING OFFICER. THEREFORE, IN THE FACTS AND CIRCUMSTANCE OF THE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE CHARGE LEVELED AGAINST THE ASSESSEE CANNOT BE ESTABLISHED SO AS TO WARRANT PENALTY UNDER SECTION 271(1)(B) OF THE ACT AND, THEREFORE, WE DIRECT THE DELETION OF PENALTY LEVIED AGAINST TH E ASSESSEE UN DER SECTION 271(1)(B) OF THE ACT. 6. WE TAKE NOTE THAT THE FACTS AND CIRCUMSTANCES IN ALL OTHER APPEALS ARE IDENTICAL AND THE LD. D.R. COULD NOT POINT OUT ANY DIFFERENCE IN FACTS OR LAW IN THE OTHER APPEALS WHICH ARE BEFORE US, THEREFORE, FOR THE SAME REASONS AS GIVEN ABOVE IN ITA NO.94/LKW/2016 IN THE CASE OF SMT. LAXMI DEVI GUPTA TO DELETE THE PENALTY, WE ORDER DELETION OF PENALTY LEVIED UNDER SECTION 271(1)(B ) OF THE ACT IN OTHER APPEALS ALSO. 7. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.7.2016. SD/- SD/- [P. K. BANSAL] [ABY T VARKEY] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH JULY, 2016 JJ:1006 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR