BABULAL C.JAIN (HUF), MUMBAI v. ADDL CIT RG 19(1), MUMBAI

ITA 1384/MUM/2010 | 2006-2007
Pronouncement Date: 24-01-2011 | Result: Allowed

Appeal Details

RSA Number 138419914 RSA 2010
Assessee PAN AABPJ8771G
Bench Mumbai
Appeal Number ITA 1384/MUM/2010
Duration Of Justice 11 month(s) 5 day(s)
Appellant BABULAL C.JAIN (HUF), MUMBAI
Respondent ADDL CIT RG 19(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 24-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted J
Tribunal Order Date 24-01-2011
Date Of Final Hearing 24-01-2011
Next Hearing Date 24-01-2011
Assessment Year 2006-2007
Appeal Filed On 18-02-2010
Judgment Text
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` . 10 000/- U/S 272A(1)(C) OF THE I T ACT. 4 IN APPEAL THE CIT(A) CONFIRMED THE PENALTY LEVIE D BY THE ADDL.CIT FOR WHICH THE ASSESSEE IS IN APPEAL HERE BEFORE US. 3 ITA NO.1383 1384 1387 & 1390/MUM/2010 5 AT THE TIME OF HEARING THE LD COUNSEL FOR THE AS SESSEE FILED THE FOLLOWING ORDERS OF THE TRIBUNAL: I) IN THE CASE OF SMT RANJANA JAIN IN ITA NO.1228/ MUM/2010 DT 30.9.2010 II) IN THE CASE OF SMT ANITA R JAIN IN ITA NO.138 9/MUM/2010 DT30.11.2010. III)IN THE CASE OF SMT PRAMILA B JAIN IN ITA 1385/ MUM/2010 DT30.12.2010. 5.1 REFERRING TO THE ABOVE ORDERS THE LD COUNSEL F OR THE ASSESSEE SUBMITTED THAT UNDER IDENTICAL FACTS AND CIRCUMSTAN CES THE PENALTY LEVIED BY THE SAME ADDL.CIT RANGE 19(1) AND UPHELD BY THE SAME CIT(A) WAS DELETED BY THE TRIBUNAL. THEREFORE THIS BEING A COVERED MATTER IN FAVOUR OF THE ASSESSEE THE PENALTY LEVIED BY THE ADDL. CIT RANGE 19(1) AND UP HELD BY THE CIT(A) SHOULD BE DELETED. 5.2 THE LD DR ON THE OTHER HAND FAIRLY SUBMITTED TH AT UNDER IDENTICAL FACTS AND CIRCUMSTANCES PENALTY LEVIED BY THE ADDL.CIT AND C ONFIRMED BY THE CIT(A) HAS BEEN DELETED BY THE TRIBUNAL. 6 AFTER HEARING BOTH THE SIDES WE FIND THE ASSESSI NG OFFICER ISSUED WITNESS SUMMONS NOT ONLY TO THE ASSESSEE BUT ALSO TO THE OT HER PERSONS AND THE PENALTY WAS LEVIED BY THE ADDL.CIT FOR NON APPEARANCE UNDER SAME FACTS AND CIRCUMSTANCES. WE FIND IN THE CASE OF SMT PRAMILA B JAIN THE PENALTY WAS CANCELLED BY THE TRIBUNAL VIDE ITA NO. 1385/MUM/20 10 ORDER DATED 30.12.2010 BY HOLDING AS UNDER: WE HAVE CONSIDERED THE ISSUE. AS SEEN FROM THE ORD ERS THE A.O. HAD ISSUED WITNESS SUMMONS NOT ONLY TO THE APPELLANT BUT ALSO TO THE OTHER PERSON AND THE PENALTY LEVIED FOR NON APPEARANCE ON SAME FACTS BY SAME OFFICER IN THE CASE OF 4 ITA NO.1383 1384 1387 & 1390/MUM/2010 SMT. RANJANA JAIN WAS CANCELLED BY THE ITAT IN ITA NO. 1228/MUM/2010 DATED 30 TH SEPTEMBER 2010 BY HOLDING AS UNDER: - 4. A PLAIN PERUSAL OF THE ORDERS OF THE AUTHORITIE S BELOW SHOWS THAT THE ONLY REASON AS TO WHY THE ASSESSEES EXPLANATION FO R NOT APPEARING BEFORE THE INCOME TAX OFFICER IS REJECTED IS THAT W HEN THE INCOME TAX OFFICER DID NOT RECORD HER ATTENDANCE THE ASSESSEE WAS EXPECTED TO APPROACH THE INCOME TAX OFFICERS SUPERIOR AUTHORIT Y AND RECORD THE PRESENCE OR IN THE ALTERNATE THE ASSESSEE WAS EXP ECTED TO AGAIN APPEAR BEFORE THE INCOME TAX OFFICER ON THE VERY NE XT DATE. THIS REJECTION OF THE ASSESSEES EXPLANATION IN OUR CON SIDERED VIEWS IS WHOLLY AND UNSUSTAINABLE IN LAW INASMUCH AS THE PEN ALTY CAN ONLY BE IMPOSED FOR NOT APPEARING BEFORE THE INCOME TAX OFF ICER ON THE SCHEDULE DATE OF APPOINTMENT. THAT IS NOT THE CASE HERE. THE ASSESSEE WAS PRESENT ON THE APPOINTED DAY. THE ASSESSEE IS E XPECTED TO PRESENT BEFORE THE OFFICER REQUIRING HIS PRESENCE. IN ANY E VENT IT IS WHOLLY UNREALISTIC TO ASSUME IN CASE THE ASSESSEE IS CALLE D UPON TO APPEAR BEFORE THE ITO AND DESPITE HER WAITING OUTSIDE THE ROOM OF THE ITO AND DESPITE HER HAVING DULY INTIMATED THE ITO ABOUT HER PRESENCE THERE THE ASSESSEE DOES NOT GET CALLED IN THE CHAMBER OF THE INCOME TAX OFFICER THE ASSESSEE SHOULD IMMEDIATELY APPROACH THE HIGHER AUTHORITIES TO INFORM THE ABOVE ATTITUDE OF THE ITO. THE ASSESSEE IS NOT DUTY BOUND TO DO SO. AS FAR THE SUGGESTION THAT THE ASSESSEE SHOU LD HAVE APPEARED ON THE NEXT WORKING DAY THE ASSESSEE IS NOT UNDER OBL IGATION TO DO SO. UNDISPUTEDLY UNDER THE ABOVE CIRCUMSTANCES PERHAPS THE ASSESSEE COULD HAVE APPEARED ON THE SUBSEQUENT DATE TO ASCER TAIN THE REASONS OF HER NOT BEING ALLOWED TO PRODUCE HERSELF ON THE SCH EDULED DATE. HOWEVER JUST BECAUSE THE ASSESSEE DID NOT SO THE PENALTY FOR NON- COMPLIANCE CANNOT BE IMPOSED. THE PENALTY CAN BE IM POSED IF THE ASSESSEE IS UNDER OBLIGATION TO DO SOMETHING AND HE FAILS TO DISCHARGE THAT OBLIGATION. THAT IS NOT EVEN THE CASE OF THE A UTHORITIES BELOW. THE PENALTY CANNOT BE IMPOSED FOR ASSESSEE NOT DOING SO METHING WHICH THE ASSESSEE OUGHT TO HAVE DONE IN IDEAL CIRCUMSTANCES. HAVING SAID THAT WE ALSO FEEL THAT THE ASSESSEE HAS ALREADY UNDERGON E SUFFICIENT AGONY IN PURSING THIS LITIGATION AND THE ASSESSEE WILL HOPEF ULLY ENSURE IN FUTURE SCRUPULOUS COMPLIANCE WITH LEGITIMATE REQUISITIONS FROM THE TAX AUTHORITIES. WE LEAVE IT AT THAT. FOR THE REASONS SET OUT ABOVE WE DEEM IT PROPER TO DELETE THE IMPUGNED PENALTY. THE ASSESSEE GETS RELIEF ACCORDINGLY. 7 SINCE THE FACTS IN THE IMPUGNED CASE ARE SIMILAR TO THE FACTS IN THE CASE OF SMT PRAMILA B JAIN THEREFORE RESPECTFULLY FOLLOWI NG THE DECISION OF THE COORDINATE BENCHES OF THE TRIBUNAL WE ARE OF THE C ONSIDERED OPINION THAT THE FACTS IN THE IMPUGNED CASE DO NOT WARRANT ANY PENA LTY U/S 272A(1)( C) OF THE 5 ITA NO.1383 1384 1387 & 1390/MUM/2010 ACT. ACCORDINGLY THE PENALTY LEVIED BY THE ADDL.C IT IS CANCELLED. THE APPEAL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. ITA NO.138 ITA NO.138 ITA NO.138 ITA NO.1384 44 4/MUM/2010. /MUM/2010. /MUM/2010. /MUM/2010. ITA NO.138 ITA NO.138 ITA NO.138 ITA NO.1387 77 7/MUM/2010. /MUM/2010. /MUM/2010. /MUM/2010. ITA NO.13 ITA NO.13 ITA NO.13 ITA NO.1390 9090 90/MUM/2010. /MUM/2010. /MUM/2010. /MUM/2010. 8 SINCE THE GROUNDS IN THE ABOVE THREE APPEALS ARE IDENTICAL TO THE GROUNDS IN ITA NO. 1383/MUM/2010; THEREFORE FOLLOWING THE SAME RATIO THE PENALTY LEVIED BY THE ADDL.CIT RANGE 19(1) AND CONFIRMED B Y THE CIT(A) ARE ALSO CANCELLED. 9 IN THE RESULT THE APPEALS FILED BY THE RESPECTIV E ASSESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ITSELF I.E. 24/1/2011. SD/ SD/- ( (( ( R V EASWAR R V EASWAR R V EASWAR R V EASWAR ) )) ) PRESIDENT ( (( ( R K PANDA R K PANDA R K PANDA R K PANDA ) )) ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: 24 TH JAN 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI