Dolphin Developers Ltd., Kanpur V. Dy. Commissioner of Income Tax, Central Circle-II, Kanpur

ITSSA 598/LKW/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0186 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 month(s) 8 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 27-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 18-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Assessee Lawyers: S K GARG
• Keywords: Reasonable cause
• Section: 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO. 594 TO 600/LKW/2017 ASSESSMENT YEAR: 2009 - 10 TO 2015 - 16 DOLPHIN DEVELOPERS LTD. 7/7/71A TILAK NAGAR KANPUR V. DY. CIT CENTRAL CIRCLE II KANPUR T AN /PAN : AABCD8079J) (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI S. K. GARG, ADVOCATE RESPONDENT BY: SHRI C. K. SINGH, D.R. DATE OF HEARING: 28 0 2 201 9 DATE OF PRONOUNCEMENT: 01 0 3 201 9 O R D E R PER A. D. JAIN, V.P . : THESE ARE APPEALS FILED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDER S OF THE LD. CIT(A) IV, KANPUR , ALL DATED 10/8/2017 FOR ASSESSMENT YEARS 2009 - 10 TO 2015 - 16 . SINCE THE GROUNDS RAISED AND THE FACTS INVOLVED IN ALL THE CASES ARE, MUTATIS MUTANDIS, IDENTICAL, WE HAVE DECIDED TO DISPOSE OF ALL THESE APPEALS BY A COMMON ORDER. 2 . FOR THE SAKE OF CONVENIENCE, WE TAKE UP THE FACTS INVOLVED IN ITA NO. 594/LKW /201 7 . THE GROUNDS RAISED BY THE ASSESSEE IN ITA NO. 594/LKW/2017 ARE AS UNDER: - 1. BECAUSE THE ' CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT 'UNDERSIGNED IS OF THE VIEW THAT THE APPELLANT HAS NOT ONLY COMMITTED THE DEFAULT UNDER THE PROVISION OF SECTION 271( 1 )(B) BUT ALSO FAILED TO SHOW REASONABLE CAUSE FOR COMMITTING SUCH DEFA ULT' AND, BASED ON SUCH A VIEW, IN UPHOLDING PENALTY OF RS.10,000/ - AS HAS BEEN LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271( 1)(B) OF THE ACT ITA NO.594 TO 600/LKW/2017 PAGE 2 OF 4 2. BECAUSE WHILE UPHOLDING THE LEVY OF PENALTY UNDER SECTION 271(1)(B), THE 'CIT(A)' HAS FAILED TO CONSIDER A ND TAKE INTO ACCOUNT THAT A) THE APPELLANT HAD COMPLIED WITH NOTICE UNDER SECTION 142(1) AND SUCH A COMPLIANCE COULD NOT HAVE BEEN HELD TO BE PART COMPLIANCE; B) PROCEEDINGS UNDER SECTION 153C, DURING THE COURSE OF WHICH SUCH NOTICE UNDER SECTION 142(1) HAD BEEN ISSUED WERE NOT VALID AS PER ADVICE RECEIVED BY THE APPELLANT, AS HAD DULY BEEN BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT RELATED PROCEEDINGS; C) IN ANY CASE IN COMPLIANCE WITH THE SAID SHOW CAUSE NOTICE THE A PPELLANT HAD GIVEN DETAILED REASONING FOR ALLEGED NON - COMPLIANCE; D) AFTER CONSIDERING THE SAID RESPONSE TO THE SHOW CAUSE NOTICE, THE ASSESSING OFFICER HIMSELF HAD TAKEN A REASONABLE VIEW BY NOT PROCEEDING TO PASS AN ORDER LEVYING PENALTY; E) INSTEAD THE ASSESSING OFFICER, ISSUED FURTHER NOTICE(S) UNDER SECTION 142(1); AND F) THERE WAS NO JUSTIFICATION, EITHER ON FACTS OR IN LAW TO PASS AN ORDER LEVYING PENALTY UNDER SECTION 271( 1) (B) AND ACCORDINGLY THE PENALTY ORDER THAT HAD BEEN IMPUGNED BEFORE HIM WAS LIABLE TO BE QUASHED. 3. BECAUSE THE ORDER LEVYING PENALTY STOOD VITIATED AS THE AUTHORITIES BELOW HAD FAILED TO TAKE INTO CONSIDERATION THE SURROUNDING FACTS AND CIRCUMSTANCES OF THE CASE. 4. BECAUSE IN ANY CASE THE TEXT OF THE ORDER LEVYING PENALTY UNDE R SECTION 271(1 )(B) ITSELF SHOWED THAT PENALTY UNDER SECTION 271( 1 )(B) HAD BEEN LEVIED FOR ALLEGED NON - COMPLIANCE OF SUBSEQUENT NOTICES UNDER SECTION 142(1) AND THERE BEING NO SHOW CAUSE NOTICE ISSUED FOR SUCH SUBSEQUENT NON - COMPLIANCE, ORDER LEVYING PENAL TY UNDER SECTION 271( 1 )(B) WAS LIABLE TO BE HELD TO HAVE BEEN PASSED IN VIOLATION OF THE PROVISION OF SECTION 274 OF THE ACT AND ACCORDINGLY THE SAME SHOULD HAVE BEEN QUASHED. ITA NO.594 TO 600/LKW/2017 PAGE 3 OF 4 3 . AT THE OUTSET, THE LD. A.R. OF THE ASSESSEE HAS CONTENDED THAT THE AUTHORITIES BELOW HAVE ERRED IN HOLDING THAT THERE WAS NO COMPLIANCE MADE BY THE ASSESSEE TO THE NOTICE DATED 19/10/2016, ISSUED UNDER SECTION 142(1) OF THE INCOME - TAX ACT, 1961. IT HAS BEEN CONTENDED THAT THE ASSESSEE DULY FILED REPLY (COPY AT APB: 14 - 30) DATED 28/1 0/2016 TO THE SAID NOTICE DATED 19/10/2016 ISSUED BY THE ASSESSING OFFICER. 4 . THE CONTENTION OF THE ASSESSEE IS FOUND TO BE CORRECT. APB 14 TO 30 IS THE COPY OF ASSESSEES REPLY DATED 28/10/2016 TO THE NOTICE DATED 19/10/2016 ISSUED TO THE ASSESSEE UNDER SE CTION 142(1) OF THE ACT . THE F IRST PAGE OF THIS REPLY (APB 14), A SCANNED COPY WHERE OF IS REPRODUCED HEREIN BELOW, BEARS THE STAMP OF THE ASSESSING OFFICER AND SIGNATURES THEREON. THESE ARE DATED 21/12/2016. THE DEPARTMENT HAS NOT BEEN ABLE TO SHOW OTHE RWISE: - ITA NO.594 TO 600/LKW/2017 PAGE 4 OF 4 5 . THEREFORE, IT CANNOT BE SAID THAT THE ASSESSEE DID NOT COMPLY WITH THE NOTICE DATED 19/10/2016 ISSUED UNDER SECTION 142(1) OF THE ACT. THE PROVISIONS OF SECTION 271(1)(B) OF THE ACT GET ATTRACTED ONLY ON THE FAILURE OF THE ASSESSEE TO COMPLY W ITH, INTER ALIA, THE NOTICE UNDER SECTION 142(1) OF THE ACT. SINCE , IN THE PRESENT CASE, THE ASSESSEE HAS DULY COMPLIED WITH THE NOTICE, PENALTY UNDER CONSIDERATION IS ENTIRE UNCALLED FOR. IT IS, ACCORDINGLY, CANCELLED. 6 . IN THE RESULT, ALL THE SEVEN APPEA L S FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01 / 0 3 /201 9 . SD/ - SD/ - [ T. S. KAPOOR ] [ A. D. JAIN ] ACCOUNTANT MEMBER VICE PRESIDENT DATED: 1 ST MARCH , 201 9 JJ: 2802 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR