Sri. D.S. Radhakrishna, Bangalore v. ACIT, Bangalore

ITA 113/BANG/2011 | 2007-2008
Pronouncement Date: 13-12-2011

Appeal Details

RSA Number 11321114 RSA 2011
Assessee PAN AANPR9251M
Bench Bangalore
Appeal Number ITA 113/BANG/2011
Duration Of Justice 10 month(s) 5 day(s)
Appellant Sri. D.S. Radhakrishna, Bangalore
Respondent ACIT, Bangalore
Appeal Type Income Tax Appeal
Pronouncement Date 13-12-2011
Appeal Filed By Assessee
Bench Allotted A
Tribunal Order Date 13-12-2011
Date Of Final Hearing 13-12-2011
Next Hearing Date 13-12-2011
Assessment Year 2007-2008
Appeal Filed On 08-02-2011
Judgment Text
IN THE INCOME-TAX APPELLATE TRIBUNAL BANGALORE BENCH A BANGALORE BEFORE SHRI N. BARATHVAJA SANKAR VICE PRESIDENT AND SMT P. MADHAVI DEVI JUDICIAL MEMBER I.T.A. NO.113(BANG.)/2011 (ASSESSMENT YEAR : 2007-08) SHRI D.S.RADHAKRISHNA NO.129 RESIDENCY ROAD BEHIND DEVATHA PLAZA BANGALORE-560 025 PAN NO.AANPR9251M APPELLANT VS THE ASST. COMMISSIONER OF INCOME CIRCLE-1(1) BANGALORE RESPONDENT ASSESSEE BY : SHRI GANESH R GHALE ADVOCATE REVENUE BY : SMT. SREELEKHA ADDL. CIT DATE OF HEARING : 13-12-2011 DATE OF PRONOUNCEMENT :13-12-201 1 O R D E R PER SMT. P. MADHAVI DEVI JM; THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORD ER OF THE CIT(A) FOR THE ASSESSMENT YEAR 2007-08 IN CONFIRMING THE PENALTY LEVIED BY THE AO U/S 271(1)(B) OF THE IT ACT. THE ASSESSEE HAS ALSO URGED IN H IS GROUNDS THAT THE ASSESSEE WAS PREVENTED BY REASONAB LE CAUSE FROM BEING PRESENT ON 02-12-2009 IN RESPONSE TO NOTICE U/S 143(2) OF THE IT ACT AND THEREFORE NO PENALTY U/S 271(1)(B) IS EXIGIBLE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE A N INDIVIDUAL IS DERIVING INCOME FROM HOUSE PROPERTY AND OTHER SOURCES . HE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME OF RS.19 98 413/- FO R THE RELEVANT ASSESSMENT YEAR. DURING THE ASSESSMENT PROCEE DINGS U/S 143(3) OF THE IT ACT THE ASSESSEE WAS ASKED TO FURNISH C ONFIRMATION ITA NO.113(B)2011 S 2 LETTERS FROM UNSECURED LOAN CREDITORS VIDE ORDER SHEET ENTRY DATED 16- 11-2009 AND THE NEXT DATE OF HEARING WAS FIXED AS 02-1 2-2009. ON THE SAID DATE THE ASSESSEE HAD FAILED TO APPEAR AND FURNISH T HE DETAILS. IN VIEW OF THE SAME A SHOW CAUSE NOTICE WAS ISSUED U/S 271 (1)(B) OF THE IT ACT ON 02-12-2009 AND THE SAME WAS ALSO SENT TO THE ASSESSEE. THEREAFTER THE AO COMPLETED THE ASSESSMENT MAKING CER TAIN ADDITIONS AND ASSESSED THE INCOME AT RS.73 59 430/- AND COMPUTE D THE TAX THEREON. AS REGARDS THE PENALTY U/S 271(1)(B) OF THE IT ACT IS CONCERNED THE AO OBSERVED THAT THE ASSESSEE HAS NOT RESPONDED TO THE NOTICE U/S 271(1)(B) OF THE IT ACT AND THEREFORE THE PENALTY IS EXIGIBLE IN THIS CASE. ACCORDINGLY THE AO LEVIED A PENALTY OF RS.10 000/- AS PER T HE PROVISIONS OF SEC.271(1)(B) OF THE IT ACT. 2.1 AGGRIEVED BY THE IMPOSITION OF THE PENALTY THE ASSESSE E PREFERRED AN APPEAL BEFORE THE CIT(A) STATING THAT HE IS 8 0 YEARS OLD AND THEREFORE ALL HIS AFFAIRS ARE BEING LOOKED AFTER BY HIS EMPLOYE E SHRI R.NAGARAJ AND THAT SHRI R.NAGARAJ HAD TO GO OUT OF THE STATION I.E TO SALEM ON SOME PRESSING FAMILY MATTERS AND THEREFORE COULD NOT FURNISH THE PARTICULARS ON 02-12-2009. IT WAS ALSO SUBMITTED TH AT THERE WAS COMPLIANCE ON MANY OCCASIONS FOR THE SAME ASSESSMENT YE AR AND THIS WAS THE ONLY DEFAULT AND THEREFORE PENALTY MAY BE REVOK ED. THE CIT(A) HOWEVER OBSERVED THAT THOUGH THE EMPLOYEE OF THE ASSE SSEE SHRI R.NAGARAJ HAD RETURNED ON 04-12-2009 HE DID NOT RESP OND TO THE NOTICE ISSUED U/S 143(2) EVEN BEFORE THE COMPLETION OF THE ASSESSMENT ON 24-12-2009 AND THEREFORE CONFIRMED PENALTY. 2.2 AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE US. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI GANESH R GH ALE WHILE REITERATING THE SUBMISSIONS MADE BEFORE THE AUTHORITIE S BELOW ITA NO.113(B)2011 S 3 SUBMITTED THAT THE ASSESSEE HAD ATTENDED THE ASSESSM ENT PROCEEDINGS THROUGHOUT AND 02-12-2009 WAS THE ONLY DATE ON WHICH THERE WAS FAILURE ON HIS PART. FOR THIS HE RELIED UPON THE ASSESSME NT ORDER WHEREIN THE DATES OF HEARING AND THE ASSESSEES PRESE NCE ON THE DATES IS RECORDED. HE SUBMITTED THAT AS PER SEC.271(1)(B) OF THE ACT THE PENALTY IS NOT LEVIABLE IF THERE IS REASONABLE CAUSE FOR THE SAID D EFAULT. IN SUPPORT OF HIS CONTENTION HE ALSO PLACED RELIANCE UPON THE DECISION OF B BENCH OF THE TRIBUNAL AT PUNE IN THE CASE OF MRS. S HAKUNTALA HIRALAL MALU VS DCIT IN ITA NOS.116(PN)2009 TO 1122(P)/2009 DATED 29-04- 2011 WHEREIN UNDER SIMILAR CIRCUMSTANCES THE PENALTY HAS BEEN DELETED HOLDING THAT THERE WAS REASONABLE CAUSE FOR THE NON-APPEARANCE ON THE STIPULATED DATE. 4. THE LEARNED DR ON THE OTHER HAND SUPPORTED THE OR DERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE HAS FA ILED TO COMPLY WITH THE PROVISIONS OF THE ACT AND THEREFORE LEVY OF PENALTY IS JUSTIFIED. 5. HAVING HEARD BOTH THE PARTIES AND HAVING CONSIDERED T HE RIVAL CONTENTIONS WE FIND THAT THE LEVY OF PENALTY U/S 271(1)(B) OF THE IT ACT IS EXIGIBLE WHERE AN ASSESSEE FAILS TO COMPLY WITH A NOTICE ISS UED U/SUB- SEC.2 OF SEC.143. SEC.273B PROVIDES THAT NO PENALTY SHALL B E IMPOSED U/S 271(1)(B) FOR ANY FAILURE REFERRED TO IN THE SAID PROCEEDIN GS IF HE PROVES THAT THERE WAS REASONABLE CAUSE FOR THE SAID FAILU RE. THE ASSESSEE HAS EXPLAINED REASONABLE CAUSE BY FILING AN AFFIDAVIT OF HIS EMP LOYEE TO THAT EFFECT THAT HE WAS UNABLE TO APPEAR DUE TO PRESSIN G FAMILY CIRCUMSTANCES AND ALSO BEING OUT OF THE STATION. THIS FACT OF THE EMPLOYEE BEING OUT OF THE STATION ON 02-12-2009 IS ALSO N OT DISPUTED AS THE CIT(A) HIMSELF RECORDED THAT SHRI R.NAGARAJ HAD RETURN ED ON 04-12- 2009. THE PENALTY IS FOR NOT APPEARING AND NOT FURNISHING THE DETAILS ITA NO.113(B)2011 S 4 ON 02-12-2009. FURTHER IT IS ALSO NOTE WORTHY THAT THE ASSESSEE IS 80 YEARS OLD AND IS IMMOBILE AND ALL HIS MATTERS ARE LOOKED AFTE R BY HIS EMPLOYEE. IN SUCH A SITUATION IN OUR OPINION THE CAUSE S HOWN BY THE ASSESSEE IS REASONABLE AND SUCH A VIEW HAS ALREADY BEEN EXPRESSED BY A CO-ORDINATE BENCH OF PUNE TRIBUNAL (CITED SUPRA). IN VIEW OF THE SAME WE ARE INCLINED TO DELETE THE PENALTY LEVIED. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THE 13 TH DEC 2011 SD/- SD/- ( N.BARATHVAJA SANKAR) (SMT. P. MADHAVI DEVI) VICE PRESIDENT JUDICIAL MEMBER PLACE: BANGALORE DATED: 13/12/2011 AM* COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3. CIT(A) 4. CIT 5. DR 6. GF(BLORE) BY ORDER AR ITAT BANGALORE