M/s. Kalash Developers Pvt.Ltd., Ahmedabad V. The ACIT.,Cent.Circle-1(1), Ahmedabad

ITSSA 451/AHD/2010

• Counselvise Citation: [2011] 124 COUNSELVISE.COM (IT) 8583 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 22 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 18-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-03-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 26-04-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Keywords: Document seized; Reasonable cause; Documents seized
• Section: 273B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HON'BLE SHRI G.D.AGRAWAL, V.P. & HON BLE SHRI T.K. SHARMA, J.M.) ITA(SS) NOS. 451 TO 457/AHD/10 ASSESSMENT YEARS : 2001-2002 TO 2007-2008 M/S. KALASH DEVELOPERS PVT. LTD., -VS- A.C. I.T., CENTRAL CIRCLE-1(1), AHMEDABAD AHMEDABAD (PAN : AAACN 7719C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK SONI, A.R . RESPONDENT BY : SHRI R.K.DHANESTA, D.R. O R D E R PER BENCH : THESE APPEALS FILED BY THE ASSESSEE ARE AGAINST TH E COMMON ORDER DATED 09.02.2010 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)-I, AHMEDABAD CONFIRMING THE PENALTY OF RS.10,000/- IN EACH OF THE SEVEN ASSESSM ENT YEARS I.E. FOR THE ASSESSMENT YEARS 2001- 2002 TO 2007-2008. 2. AT THE TIME OF HEARING BEFORE US, DEEPAK SONI, D .R., APPEARED ON BEHALF OF THE ASSESSEE AND CONTENDED THAT FOR NON-COMPLIANCE OF NOTICE OF HEARING ON 13.10.2008, THE ASSESSING OFFICER LEVIED PENALTY OF RS.10,000/- EACH IN EACH OF THE S EVEN ASSESSMENT YEARS TWICE. THE EARLIER PENALTY LEVIED IS CANCELLED BY THE ITAT, B BENCH, VICE ORDER DATED 16/09/2010 IN ITA(SS) NOS. 430 TO 436/AHD/2010 FOR THE ASSESSMENT YEARS 2 001-2002 TO 2007-2008. 2.1 THE LD. COUNSEL FOR THE ASSESSEE FURTHER EXPLAI NED THAT THERE WAS A REASONABLE CAUSE FOR NON-COMPLIANCE BEFORE THE ASSESSING OFFICER ON 13.1 0.2008 BECAUSE HIS CONSULTANT SHRI DIPAK SONI WAS NOT AVAILABLE. HE SUBMITTED THAT FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA(SS) NOS. 430 TO 436/AHD/2010, THE PENAL TY OF RS.10,000/- IN EACH OF THE SEVEN ASSESSMENT YEARS LEVIED BY THE ASSESSING OFFICER BE CANCELLED. 3. ON THE OTHER HAND, SHRI R.K.DHANESTA, D.R., APPE ARING ON BEHALF OF THE REVENUE, COULD NOT CONTROVERT THE AFORESAID SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE. 2 ITA(SS) 451 TO 457/AHD/10 4. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT FOR NON-COMPLIA NCE OF NOTICE ON 13.10.2008, THE ASSESSING OFFICER LEVIED THE PENALTY TWICE IN EACH OF THE SEV EN ASSESSMENT YEARS. EARLIER PENALTIES LEVIED IN EACH OF THE SEVEN ASSESSMENT YEARS WAS CANCELLED BY THE ITAT, B BENCH, AHMEDABAD, VIDE ORDER DATED 16/09/2010 IN ITA(SS) NOS. 430 TO 436/A HD/2010 IN ASSESSEES OWN CASE. THE DETAILED REASONING GIVEN FOR CANCELLING THE PENALTY AS CONTAINED IN PARA 7 ARE REPRODUCED HEREINBELOW: 7. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT IN THE PENALTY ORDER ITSELF, THE ASSESSING OFFICER HAS MENTIONED IN PARA AS UNDER :- 5. FURTHERMORE, A NOTICE U/S.131 WAS ISSUED TO SH RI PRANAV DINESH SHAH. DIRECTOR IN VARIOUS NAVRATNA GROUP CONCERNS INCLUDING KALA SH DEVELOPERS PVT. LTD. TO PERSONALLY APPEAR WITH EXPLANATION ON NON-COMPLIA NCE MENTIONED ABOVE. IN RESPONSE TO SAID SUMMON, SHRI PRANAV SHAH APPEARE D AND HIS STATEMENT WAS RECORDED ON 23.10.2008. HE STATED THAT THEIR CONS ULTANT SHRI DEEPAK SONI WAS NOT ABLE TO ATTEND ON MEDICAL EMERGENCY GROUND. HE HA S ALSO REQUESTED TO GRANT FEW DAYS TO COMPLY THE SAME. IT WAS INFORMED TO HIM T HAT IN VIEW OF THE TIME BARRING DATE INVOLVED, NO FURTHER TIME COULD BE GRANTED. FURTHER, BEING A DIRECTOR/ MAIN PERSON, THE AFFAIRS OF THE GROUP WERE WELL KNOWN TO HIM AND MEDICAL EMERGENCY GROUND OF THE C.A. WAS NOT TENABLE FOR NON-COMPLI ANCES. THE REPLY ON VARIOUS SEIZED DOCUMENTS WAS PENDING SINCE THE PERIODS WH EN SEARCH WAS CONDUCTED. 7.1. FROM THE BARE PERUSAL OF THE AFORESAID PARA, WE ARE CONVINCED THAT SHRI PRANAV DINESH SHAH, DIRECTOR IN VARIOUS NAVRATNA GROUP CO NCERNS INCLUDING THE ASSESSEE- COMPANY CLEARLY MENTIONED THAT NON-COMPLIANCE OF O RDERS UNDER SECTION 271(1)(B) IS ON ACCOUNT OF NON-AVAILABILITY OF THEIR CONSULTANT SH RI DEEPAK SONI. AT THE RELEVANT TIME, THE BROTHER OF SHRI DEEPAK SONI, NAMELY .SHRI VIJAY SO NI WAS SUFFERING FROM CANCER. HIS BROTHER WAS RESIDING IN U.S.A. AND EXPIRED ON 14.1 1.2008. IN OUR VIEW, THE SERIOUS ILLNESS OF ASSESSEE'S CONSULTANT'S BROTHER CONSTITUTES A R EASONABLE CAUSE WITHIN THE MEANING OF SECTION 273B OF THE INCOME TAX ACT, 1961. WE ARE, THEREFORE, OF THE VIEW THAT IT IS NOT A FIT CASE FOR LEVYING THE PENALTY UNDER SECTION 271(L)( B) OF THE INCOME TAX ACT, 1961. 7.2. IN VIEW OF THE FOREGOING, THE PENALTY OF R S. 10,000/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(L)(B) IN RESPECT OF EACH OF THE ASSESSMENT YEARS UNDER APPEALS IS CANCELLED. 4.1 WE, THEREFORE, FOLLOWING THE AFORESAID DECISION OF THE TRIBUNAL, CANCEL THE PENALTY OF RS.10,000/- LEVIED AGAIN, ON THE GROUND THAT SERIOU S ILLNESS OF ASSESSEES CONSULTANTS BROTHER 3 ITA(SS) 451 TO 457/AHD/10 CONSTITUTES A REASONABLE CAUSE WITHIN THE MEANING O F SECTION 273B OF THE I.T. ACT, 1961. RESULTANTLY, ALL THE SEVEN APPEALS OF THE ASSESSEE ARE ALLOWED. 4. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17.03.20 11. (G.D.AGRAWAL) (T.K. SHARMA) VICE PRESIDENT JUDICIAL MEMBER DATED : 17/03/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT. 3) CIT(A.) CONCERNED, 4) CIT CONCERNED, 5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR, ITAT, AHMEDABAD TALUKDAR/SR.P.S.