Shri Kothari Jayantilal Karsanlal,, RAJKOT-GUJARAT v. The Income Tax Officer, Ward-1,, RAJKOT-GUJARAT

ITA 159/RJT/2011 | 2005-2006
Pronouncement Date: 09-09-2011 | Result: Allowed

Appeal Details

RSA Number 15924914 RSA 2011
Assessee PAN ADGPK2884B
Bench Rajkot
Appeal Number ITA 159/RJT/2011
Duration Of Justice 4 month(s) 18 day(s)
Appellant Shri Kothari Jayantilal Karsanlal,, RAJKOT-GUJARAT
Respondent The Income Tax Officer, Ward-1,, RAJKOT-GUJARAT
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 09-09-2011
Date Of Final Hearing 29-08-2011
Next Hearing Date 29-08-2011
Assessment Year 2005-2006
Appeal Filed On 21-04-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.159/RJT/2011 (ASSESSMENT YEAR 2005-06) SHRI KOTHARI JAYANTILAL KARSANLAL VS ITO W D.1 C/O KALPESH S DOSHI & CO CAS GANDHIDHAM 411 COSMO COMPLEX MAHILA COLLEGE CIRCLE RAJKOT 360 001 PAN : ADGPK2884B (APPELLANT) (RESPONDENT) DATE OF HEARING : 29-08-2011 DATE OF PRONOUNCEMENT : 09-09-2011 APPELLANT BY : SHRI KALPESH DOSHI RESPONDENT BY: SHRI MK SINGH O R D E R PER N.R.S. GANESAN JM THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A)-XX AHMEDABAD DATED 20-01-2011 PERTAINING TO THE ASSES SMENT YEAR 2005-06 CONFIRMING THE LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. 2. SHRI KALPESH DOSHI THE LD.REPRESENTATIVE FOR TH E ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER LEVIED PENALTY U/S 271(1)(B) FOR NON COMPLIANCE OF THE NOTICE ISSUED U/S 142(1) OF THE I.T. ACT 1961. ACCORDING TO THE LD.REPRESENTATIVE FOR THE ASSESSEE DURING THE RELEVANT YEAR UNDER CONSIDERAT ION THE ASSESSEE CLOSED DOWN ITS BUSINESS AND LET OUT THE PREMISES TO A TEN ANT. DUE TO UNAVOIDABLE CIRCUMSTANCES EVEN THE TENANT COULD NOT START HIS B USINESS. ALL NOTICES ISSUED TO ITA NO.159/RJT/2011 2 THE ASSESSEE U/S 142(1) APPEAR TO HAVE BEEN SERVED ON THE PREMISES OF THE ASSESSEE. HOWEVER THE ISSUANCE OF NOTICE WAS NOT BROUGHT TO THE NOTICE OF THE ASSESSEE. THEREFORE ACCORDING TO THE LD.REPRESENT ATIVE FOR THE ASSESSEE THERE WAS A REASONABLE CAUSE ON THE PART OF THE ASSESSEE FOR NOT APPEARING BEFORE THIS TRIBUNAL. THEREFORE PENALTY CANNOT BE LEVIED. 3. ON THE CONTRARY SHRI MK SINGH THE LD.DR SUBMIT TED THAT THE ASSESSING OFFICER HAS ISSUED SHOW CAUSE NOTICE DATED 20-12-20 07 BEFORE LEVYING IMPUGNED PENALTY. SINCE NO REPLY WAS RECEIVED FROM THE ASSE SSEE ANOTHER SHOW CAUSE NOTICE WAS ISSUED ON 11-06-2008. THE ASSESSEE HAS NOT RESPONDED TO BOTH THE SHOW CAUSE NOTICES ISSUED BY THE ASSESSING OFFICER. THEREFORE THE ASSESSING OFFICER CAME TO THE CONCLUSION THAT THE ASSESSEE HA S NOT COMPLIED WITH NOTICES U/S 142(1) WITHOUT ANY REASON. HOWEVER BEFORE THE CIT(A) THE ASSESSEE CONTENDED THAT THE NOTICE WAS SERVED ON THE PREMISE S WHICH WAS CLOSED DOWN; THEREFORE THE ASSESSEE WAS NOT AWARE OF THE ISSUAN CE OF NOTICE. ON EXAMINATION THE CIT(A) FOUND THAT THE CONTENTION OF THE ASSESSEE THAT THE ASSESSEE SHIFTED HIS PREMISES AFTER CLOSING HIS BUS INESS WAS NOT BORNE OUT OF RECORD. THEREFORE THE CIT(A) FOUND THAT THERE WAS NO CASE AS CLAIMED BY THE ASSESSEE. ACCORDINGLY HE CONFIRMED THE LEVY OF PEN ALTY. UNDER THESE CIRCUMSTANCES THE LD.DR PLEADED THAT THE ORDER OF THE CIT(A) MAY BE UPHELD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY THE ASSE SSING OFFICER ISSUED FOUR ITA NO.159/RJT/2011 3 NOTICES U/S 142(1) OF THE ACT. ALL THE NOTICES WER E NOT RESPONDED TO / COMPLIED WITH BY THE ASSESSEE. THEREFORE THE ASSESSING OFF ICER INITIATED PENALTY PROCEEDINGS U/S 271(1)(B) OF THE ACT. EVEN BEFORE INITIATING PENALTY PROCEEDINGS THE ASSESSING OFFICER ISSUED TWO SHOW CAUSE NOTICES ON 20-12-2007 AND ON 11- 06-2008. THE ASSESSEE HAS NOT RESPONDED TO BOTH TH E NOTICES. ACCORDINGLY THE ASSESSING OFFICER CONCLUDED THAT THE ASSESSEE FAILE D TO APPEAR WITHOUT ANY REASONABLE CAUSE AND LEVIED THE IMPUGNED PENALTY. HOWEVER THE ASSESSEE CONTENDED BEFORE THE CIT(A) FOR THE FIRST TIME THAT THE BUSINESS WAS CLOSED DOWN AND THE ASSESSEE SHIFTED FROM THE PREMISES AFTER LE TTING OUT THE SAME. THIS FACT WAS RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFOR E THE CIT(A) AND THE CIT(A) REJECTED THE SAME ON THE GROUND THAT THIS FACTUAL A SPECT WAS NOT BORNE OUT OF THE RECORD. THE FACT REMAINS IS THAT THE ASSESSEE HAS NOT RESPONDED TO THE SHOW NOTICE ISSUED BY THE ASSESSING OFFICER. THEREFORE THE ASSESSING OFFICER HAD NO OCCASION TO EXAMINE THE CONTENTION OF THE ASSESSEE. THE ASSESSEE CONTENDED BEFORE THIS TRIBUNAL THAT THERE WAS A REASONABLE CA USE SINCE THE NOTICES WERE SERVED ON THE PREMISES WHICH WERE LET OUT AND THE S ERVICE OF NOTICE WAS NOT BROUGHT TO THE NOTICE OF THE ASSESSEE. IN VIEW OF THIS CONTENTION OF THE ASSESSEE IT NEEDS TO BE FOUND OUT WHETHER THE ASSESSEE HAS A CTUALLY CLOSED DOWN HIS BUSINESS DURING THE YEAR UNDER CONSIDERATION AND LE T OUT THE SAME AS CLAIMED. IT IS ALSO NOT KNOWN TO WHOM THE NOTICE U/S 142(1) WAS SERVED. THE ASSESSEE CLAIMED THAT IT WAS SERVED ON THE PREMISES WHICH WE RE CLOSED DOWN AND IT WAS NOT BROUGHT TO HIS NOTICE. THEREFORE BEFORE LEVYI NG PENALTY IT IS NECESSARY TO BRING ON RECORD WHO ACTUALLY RECEIVED THE NOTICE IS SUED U/S 142(1). FROM THE ITA NO.159/RJT/2011 4 ORDER OF THE LOWER AUTHORITIES IT IS NOT CLEAR WHO HAS RECEIVED THE NOTICE. THEREFORE IN OUR OPINION THE MATTER NEEDS TO BE R ECONSIDERED BY THE ASSESSING OFFICER. ACCORDINGLY THE ORDER OF LOWER AUTHORITY IS SET ASIDE AND THE ENTIRE MATTER IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFIC ER. THE ASSESSING OFFICER SHALL RECONSIDER THE MATTER AFRESH AND FIND OUT WHETHER T HE ASSESSEE HAD ACTUALLY CLOSED DOWN HIS PREMISES AND WHO ACTUALLY RECEIVED THE NOTICE ISSUED U/S 142(1) OF THE ACT. THEREAFTER THE ASSESSING OFFICER SHAL L DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORT UNITY TO THE ASSESSEE. 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 09-09-2011. SD/- SD/- (A..L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT DT : 09 TH SEPTEMBER 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-XX AHMEDABAD 4. THE CIT-II RAJKOT 5. THE DR I.T.A.T. RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT