Smt. Vasantaben J. Shah, Surat V. The ACIT., Central Circle3, Surat

ITSSA 273/AHD/2015

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1599 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-02-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 23-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M K PATEL
• Section: 143(3); 142(1)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER SR. NO. IT(SS)A.NO. AND ASSTT.YEAR APPELLANT RESPONDENT 1-6 272 TO 2 77 /AHD/2015 2007-08 TO 2012-13 VASANTABEN J. SHAH CHAITANYA VILAS OPP: NARMAD LIBRARY MODI ROAD GHOD DOD ROAD SURAT 395 007. PAN : AAIFR 7533F ACIT, CENT.CIR.3 SURAT. 7-12 2 84 TO 28 9 /AHD/2015 2007-08 TO 2012-13 SUNIL JAYANTILAL SHAH CHAITANYA VILAS OPP: NARMAD LIBRARY MODI ROAD GHOD DOD ROAD SURAT 395 007. PAN : ACIPS 4765 Q ACIT, CENT.CIR.3 SURAT. / (APPELLANT) / (RESPONDENT) ASSESSEE S BY : SHRI M.K. PATEL, AR REVENUE BY : PRAJNA PARAMITA, SR.DR / DATE OF HEARING : 18/02/2016 / DATE OF PRONOUNCEMENT: 18/02/2016 / O R D E R THESE TWELVE APPEALS OF ASSESSEEES AROSE FROM DIFFE RENT ORDERS OF LD.COMMISSIONER OF INCOME TAX (APPEALS), SURAT EACH DATED 13.10.2015 IN THE CASES OF TWO ASSESEES, VIZ. VASANTABEN J. SHAH AND SUNIL JAYANTILAL SHAH, FOR DIFFERENT ASSESSMENT YEARS I.E. ASSTT.YEARS 200 7-08 TO 2012-13. IT(SS)A NO.2782/AHD/2015 & 12 OTHER APPEALS 2 2. ISSUE IN ALL THE APPEALS IS IDENTICAL, AND THERE FORE, ALL TWELVE APPEALS ARE BEING TAKEN UP BY THIS CONSOLIDATED ORDER. THE ISS UE IS RELATING TO LEVY OF PENALTY OF RS.10,000/- IN EACH ASSESSMENT YEAR UNDE R SECTION 271B OF THE ACT. 3. THE FACTS IN THE PRESENT APPEALS ARE IDENTICAL T O THE FACTS IN APPEAL IN IT(SS)A.NO.261/AHD/2015 IN THE CASE OF NEEPA SANJAY SHAH VS. ACIT DECIDED BY ME ON 17.2.2016, AND THEREAFTER MY ORDER THEREIN SHALL BE IDENTICALLY APPLICABLE TO THE FACTS OF THE PRESENT CASE. FOR THE SAKE OF BREVITY, I REPRODUCE THE ORDER PASSED IN THE CASE OF NEEPA S ANJAY SHAH (SUPRA) AS UNDER: 3. I TAKE UP THE MATTER IN IT(SS)A.NO.261/AHD/2015 IN THE CASE OF NEEPA SANJAY SHAH FOR THE ASSTT.YEAR 2007-08. MY O RDER HEREINBELOW SHALL BE IDENTICALLY APPLICABLE IN ALL OTHER APPEAL S, IN THE CASE OF ALL OTHER ASSESSEES MENTIONED HEREINABOVE. 4. BRIEF FACTS OF THE CASE ARE, AS NARRATED IN THE ORDER OF THE AUTHORITIES BELOW IN THE CASE OF NEEPA SANJAY SHAH IN IT(SS)A.NO.261/AHD/2015 ARE THAT NOTICE UNDER SECTI ON 142(1) WAS ISSUED ON 3.9.2014 WHEREIN THE ASSESSEE WAS DIRECTE D TO FURNISH DETAILS ON THE DATE OF HEARING ON 25.9.2014. THE ASSESSEE FILED ADJOURNMENT LETTER ON 26.9.2014, AND AFTER THAT, DATE OF HEARIN G WAS FIXED ON 8.10.2014. HOWEVER ON 8.10.2014 NEITHER THE ASSESS EE APPLIED FOR ANY ADJOURNMENT NOR APPEARED FOR THE HEARING. ON FAILU RE OF NON- COMPLIANCE, NOTICE UNDER SECTION 271(1)(B) WAS ISSU ED SHOWING CAUSE FOR PENALTY UNDER SECTION 271(1)(B) SHOULD NOT BE I MPOSED. REPLY OF THE ASSESSEE VIDE LETTER DATED 16.12.2014 WAS UNDER : THEN AR OF THE ASSESSEE SUBMITTED A LETTER ON 16.1 2.2014 STATING THAT DUE TO AUDIT WORK AND ASSESSEE WAS OUT OF STATION THE COMPLIANCE TO THE NOTICE WAS NOT MADE THE AO WAS NOT SATISFIED WITH THE EXPLANATION OF T HE ASSESSEE AND OBSERVED THAT THE ASSESSEE HAS, WITHOUT REASONA BLE CAUSE, FAILED TO COMPLY WITH THE NOTICE UNDER SECTION 142(1), AND AC CORDINGLY, LEVIED PENALTY OF RS.10,000/- EACH UNDER SECTION 271(1)(B) OF THE ACT, WHICH WAS CONFIRMED BY THE LD.CIT(A). IT(SS)A NO.2782/AHD/2015 & 12 OTHER APPEALS 3 5. THE LD.COUNSEL FOR THE ASSESSEE, SHRI M.K. PATEL ARGUED AT THE OUTSET THAT THE ASSESSMENT HAS BEEN MADE UNDER SECT ION 143(3) OF THE ACT AND ALL THE DETAILS REQUIRED HAVE BEEN SUBMITTE D. THERE IS NO DIFFERENCE IN THE RETURNED INCOME AND THE ASSESSED INCOME. THE ASSESSEE HAS ALSO SUBMITTED EXPLANATION FOR NOT APP EARING ON THE DATE I.E. 8.10.2014, BECAUSE, THE ASSESSEE WAS OUT OF ST ATION DUE TO AUDIT WORK. THE LD.COUNSEL FOR THE ASSESSEE RELIED UPON THE DECISION, ON THE IDENTICAL ISSUE, OF THE ITAT, AHMEDABAD BENCH IN TH E CASE OF RAJ ENTERPRISES VS. ITO, IN ITA NO.958/AHD/2011 FOR THE ASSTT.YEAR 2007- 08 DATED 4.3.2015 IN THIS REGARD. ACCORDINGLY, HE PRAYED THAT THE IMPUGNED PENALTY MAY BE CANCELLED AND THE ORDER OF THE LD.CIT(A) CONFIRMING THE ACTION OF THE AO BE REVERSED. 6. THE LD.DR, ON THE OTHER HAND, RELIED UPON THE OR DERS OF THE AUTHORITIES BELOW AND ARGUED THAT THE ASSESSEE HAS NOT INTENTIONALLY CO- OPERATED IN THE ASSESSMENT PROCEEDINGS. 7. I HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE F ACTS ON RECORD. THE UNDISPUTED FACTS IN THE PRESENT CASE ARE THAT T HE ASSESSMENT IN THE PRESENT CASE HAS BEEN MADE AT THE RETURNED INCOME A ND NO ADDITIONS HAVE BEEN MADE. THE ASSESSMENT HAS BEEN MADE UNDER SECTION 143(3) OF THE ACT AND ALL THE DETAILS REQUIRED UNDER SECTI ONS 142(1)/143(2) HAVE BEEN COMPLIED, IS NOT IN DISPUTE. AS REGARDS NON-ATTENDANCE, THE ASSESSEE HAS SUBMITTED EXPLANATION, WHICH IS FOUND TO BE COGENT EXPLANATION, AND WE FIND A SUFFICIENT CAUSE IN NOT ATTENDING ON THE DATE OF HEARING I.E. 8.10.2014. THEREFORE, THE AO IS NO T JUSTIFIED IN LEVYING THE PENALTY UNDER SECTION 271(1)(B) OF THE ACT. TH E RELIANCE HAS BEEN PLACED ON THE DECISION OF ITAT, AHMEDABAD IN THE CA SE OF RAJ ENTERPRISE (SUPRA), IN WHICH CASE, THE AHMEDABAD BE NCH OF THE ITAT HAS RELIED UPON THE DECISIONS OF DELHI BENCH OF THE ITAT IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAVAN TRUST VS. ACIT, 115 TTJ 419 (DELHI) AND THE DECISION OF THE AHMEDABAD B ENCH OF THE TRIBUNAL IN THE CASE OF SWARNABEN M. KHANNA & OTHER S VS. DCIT, 132 TTJ 1 AND HELD AS UNDER: 6. . WE HAVE GONE THROUGH THE DECISIONS RELIED ON BY THE COUNSEL FOR THE ASSESSEE. IN BOTH THESE DECISIONS, THE TRIB UNAL HELD THAT WHEN AN ASSESSMENT HAS BEEN MADE UNDER SEC.143(3) AND NO T UNDER SEC.144 OF THE I.T. ACT, IT MEANS THAT SUBSEQUENT COMPLIANC E IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND T HE DEFAULTS IT(SS)A NO.2782/AHD/2015 & 12 OTHER APPEALS 4 COMMITTED EARLIER WERE IGNORED BY THE ASSESSING OFF ICER AND, THEREFORE, THERE IS NO CASE FOR LEVY OF PENALTY UNDER SEC.271( 1)(B) OF THE ACT. IN THE PRESENT CASE, THE ASSESSEE SEEMS TO HAVE CO- OP ERATED WITH THE ASSESSMENT PROCEEDINGS BY RESPONDING TO THE NOTICES AND FILING INFORMATION CALLED FOR AND THE ASSESSMENT WAS COMPL ETED UNDER SEC.143(3) AND NOT SEC.144 OF THE ACT. THEREFORE, W E HOLD THAT THERE IS NO CASE FOR LEVY OF PENALTY UNDER SEC.271(1)(B) OF THE I.T. ACT THE ASSESSEE'S CASE.' 8. THEREFORE, IN THE CIRCUMSTANCES AND THE FACTS OF THE PRESENT CASE, AND THE FINDING HEREINABOVE AND THE DECISIONS RELIE D UPON, I DIRECT TO CANCEL THE PENALTY SO LEVIED BY THE AO AND REVERSE THE ORDER OF THE LD.CIT(A). THUS, ALL THE GROUNDS OF APPEAL IN IT(SS)A.NO.261/AHD/2015 ARE ALLOWED. 9. IN THE RESULT, THE APPEAL BEING IT(SS)A.NO.261/A HD/2015 IS ALLOWED 10. NOW I TAKE UP THE OTHER APPEALS, IN THE CASE OF NEEPA SANJAY SHAH BEING IT(SS)A.NO.262 TO 266/AHD/2015 AND 3607/ AHD/2015, WHERE THE ISSUE IS IDENTICAL, AND OUR ORDER HEREINA BOVE, IN THE CASE OF NEEPA SANJAY SHAH IN IT(SS)A.NO.261/AHD/2015 SHALL BE IDENTICALLY APPLICABLE AND ALL THE GROUNDS IN ALL THE APPEALS A RE ALLOWED. 11. IN THE RESULT, IT(SS)A NO.262 TO 266/AHD/2015 A ND 3607/AHD/2015 ARE ALLOWED. 12. NOW, I TAKE UP THE APPEALS IN THE CASE OF MANIS HA SUNIL SHAH IN IT(SS)A.NO.278 TO 283/AHD/2015. IN THESE APPEALS, THE ISSUE IS IDENTICAL AS IN THE CASE OF NEEPA SANJAY SHAH IN IT(SS)A.NO.261/AHD/2015, AND OUR ORDER HEREINABOVE SHALL BE APPLICABLE IN ALL THESE APPEALS, AND ACCORDINGLY, A LL THE GROUNDS OF THE APPEALS ARE ALLOWED. 13. IN THE RESULT, IT(SS)A.NO.278 TO 283/AHD/2015 A RE ALLOWED. 14. NOW, I TAKE UP THE APPEALS OF SANJAY JAYANTILAL SHAH IN IT(SS)A.NO.290 TO 295/AHD/2015 AND 3612/AHD/2015. IN THESE APPEALS, THE ISSUE IS IDENTICAL AS IN THE CASE OF N EEPA SANJAY SHAH IN IT(SS)A.NO.261/AHD/2015, AND OUR ORDER HEREINABOVE IS APPLICABLE IN IT(SS)A NO.2782/AHD/2015 & 12 OTHER APPEALS 5 ALL THESE APPEALS, AND ACCORDINGLY, ALL THE GROUNDS OF THE APPEALS ARE ALLOWED. 15. IN THE RESULT, IT(SS)A NO.290 TO 295/AHD/2015 A ND 3612/AHD/2015 ARE ALLOWED. 16. IN COMBINED RESULT, ALL THE APPEALS OF THE ASSE SEES ARE ALLOWED. 4. ACCORDINGLY, SINCE THE FACTS AND CIRCUMSTANCES O F THE PRESENT APPEALS ARE IDENTICAL TO THE FACTS IN THE CASE OF NEEPA SAN JAY SHAH (SUPRA), AND FOR THE REASONS RECORDED THEREIN, PENALTY SO LEVIED BY THE AO IN ALL THE CASES UNDER APPEALS ARE HEREBY DIRECTED TO BE CANCELLED AND THE IMPUGNED ORDERS OF THE LD.CIT(A) ARE REVERSED IN THE RESPECTIVE APPEALS. 5. IN THE COMBINED RESULT, ALL THE APPEALS OF THE A SSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 18 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- ( B.P. JAIN ) ACCOUNTANT MEMBER