Pawan Kumar Didwania,, Varanasi v. ACIT, C.C., Varanasi

ITA 187/ALLD/2014 | 2010-2011
Pronouncement Date: 30-04-2015 | Result: Allowed

Appeal Details

RSA Number 18720714 RSA 2014
Assessee PAN ABVPD3608H
Bench Allahabad
Appeal Number ITA 187/ALLD/2014
Duration Of Justice 1 year(s) 5 day(s)
Appellant Pawan Kumar Didwania,, Varanasi
Respondent ACIT, C.C., Varanasi
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-04-2015
Assessment Year 2010-2011
Appeal Filed On 24-04-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD BENCH ALLAHABAD BEFORE SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER AN D SHRI C. N. PRASAD JUDICIAL MEMBER ITA NO. 187/A/2014 A.Y. 2010-11 PAWAN KUMAR DIDWANIA VS. ASSTT. COMMISSIONER OF INCOME TAX B-27/86A DURGAKUND ROAD CENTRAL CIRCLE BHELUPURA VARANASI VARANASI (PAN: ABVPD3608H) (APPELLANT) (RESPONDENT) ITA NO. 197/A/2014 A.Y. 2010-11 (SMT.) SITA DEVI DIDWANIA VS. ASSTT. COMMISS IONER OF INCOME TAX HOUSE NO.44-A LANE NO.5 CENTRAL CIRCLE RAVINDRAPURI VARANASI VARANASI (PAN: ABTPD8400D) (APPELLANT) (RESPONDENT) ITA NO. 203/A/2014 A.Y. 2010-11 ATUL KUMAR DIDWANIA VS. ASSTT. COMMISSIONE R OF INCOME TAX 44-A LANE NO.5 CENTRAL CIRCLE RAVINDRAPURI VARANASI VARANASI (PAN: ABSPD5684L) (APPELLANT) (RESPONDENT) ITA NO. 204/A/2014 A.Y. 2010-11 (SMT.) UMA DIDWANIA VS. ASSTT. COMMISSIONER OF INCOME TAX HOUSE NO.44-A LANE NO.5 CENTRAL CIRCLE RAVINDRAPURI VARANASI VARANASI (PAN: ABTPD8397H) (APPELLANT) (RESPONDENT) ITA NO. 187/A/2014 A.Y. 2010-11 2 ITA NO. 205/A/2014 A.Y. 2010-11 (SMT.) SAVITRI DEVI DIDWANIA VS. ASSTT. COMMISS IONER OF INCOME TAX 44-A LANE NO.5 CENTRAL CIRCLE RAVINDRAPURI VARANASI VARANASI (PAN: ABSPD5676L) (APPELLANT) (RESPONDENT) ITA NO. 207/A/2014 A.Y. 2010-11 (SMT.) ANJANA DIDWANIA VS. ASSTT. COMMISSIONER OF INCOME TAX 44-A LANE NO.5 RAVINDRAPURI CENTRAL CIRCLE VARANASI VARANASI (PAN: ABTPD8398J) (APPELLANT) (RESPONDENT) ITA NO. 208/A/2014 A.Y. 2010-11 RISHI DIDWANIA VS. ASSTT. COMMISSIONER OF I NCOME TAX B-27/86-A DURGAKUND ROAD CENTRAL CIRCLE BHELUPUR VARANASI VARANASI (PAN: ABSPR1823M) (APPELLANT) (RESPONDENT) ITA NO. 212/A/2014 A.Y. 2010-11 VINAY KUMAR DIDWANIA VS. ASSTT. COMMISSIONE R OF INCOME TAX 36A RAVINDRAPURI CENTRAL CIRCLE VARANASI VARANASI (PAN: ABVPD3601Q) (APPELLANT) (RESPONDENT) ITA NO. 187/A/2014 A.Y. 2010-11 3 ITA NO. 215/A/2014 A.Y. 2010-11 OM PRAKASH DIDWANIA (HUF) VS. ASSTT. COMMISSION ER OF INCOME TAX 44-A LANE NO.5 CENTRAL CIRCLE RAVINDRAPURI BHELUPUR VARANASI VARANASI (PAN: AAAHO5714M) (APPELLANT) (RESPONDENT) ITA NO. 229/A/2014 A.Y. 2010-11 ANUJ KUMAR DIDWANIA VS. ASSTT. COMMISSIONER OF INCOME TAX H. NO.44-A LANE NO.5 CENTRAL CIRCLE RAVINDRAPURI VARANASI VARANASI (PAN: ABVPD3611N) (APPELLANT) (RESPONDENT) ITA NO. 230 TO 235/A/2014 A.Y. 2004-05 TO 2009-10 M/S. DIDWANIA CONSTRUCTION VS. ASSTT. COMMISSION ER OF INCOME TAX B-27/90 GROUND FLOOR CENTRAL CIRCLE SHAKUMBHARI COMPLEX VARANASI VARANASI (PAN: AADFD0793N) (APPELLANT) (RESPONDENT) ITA NO. 213/A/2014 A.Y. 2010-11 PAYAL (DIDWANIA) JAIN VS. ASSTT. COMMISSION ER OF INCOME TAX D-64/52-K MADHOPUR SIGRA CENTRAL CIRCLE VARANASI VARANASI (PAN: ABTPD8399K) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ASHISH BANSAL & SHRI SAURABH AGARWAL REVENUE BY : SHRI UMESH PATHAK DATE OF HEARING : 29.04.2015 DATE OF PRONOUNCEMENT : 30.04.2015 ITA NO. 187/A/2014 A.Y. 2010-11 4 O R D E R PER BENCH: THERE ARE 17 APPEALS UNDER CONSIDERATION FOR THE D IFFERENT ASSESSMENT YEARS AND THESE APPEALS ARE FILED BY 12 DIFFERENT ASSESSE S. THE APPEALS UNDER CONSIDERATION RELATE TO LEVY OF PENALTY U/S 271(1)( B) OF THE ACT. CONSIDERING THE COMMONALITY OF THE FACTS AND ISSUES THESE APPEALS ARE CLUBBED AND ADJUDICATED IN THIS COMPOSITE ORDER. 2. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT A LL THESE ASSESSES COVERED U/S 132 OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS THE AO ISSUED NOTICES U/S 142(1) ON 01.03.2011 16.04.2010 AS THE CASE MAY B E CALLING FOR THE RETURNS. AS PER THE NOTICE THE DUE DATE FOR FILING THE RETURNS IS 15.03.2011 AND 31.05.2010 AS THE CASE MAY BE. ASSESSEES COMPLIED WITH THE SAID N OTICES BELATEDLY AND FILED THE RETURNS ON 08.06.2011 AND 14.06.2011 AS THE CASE MA Y BE. THERE IS DELAY OF AROUND 3 MONTHS. THE RETURN IN THE CASE OF DIDWANIA WAS FI LED ON 30.03.2011 (DELAY OF FEW DAYS ONLY). CONSIDERING THE DELAY IN COMPLYING THEI R NOTICES BY FILING RETURNS ASSESSING OFFICER LEVIED THE PENALTY ON 30.03.2012 ON ALL THESE ASSESSEES. 3. LD. CIT(A) CONFIRMED THE SAME. AGGRIEVED WITH TH E SAID ORDERS OF THE LD. CIT(A) ALL THESE 12 ASSESSEES FILED THE APPEALS BE FORE US. CONSIDERING THE COMMONLY ORDER ON THE ISSUE OF THE FACTS WE ARE GR OUPED WITHOUT TOGETHER AND ADJUDICATED IN THIS COMPOSITE ORDER. 4. BEFORE US LEARNED COUNSELS FOR THE ASSESSES BRO UGHT TO OUR NOTICE THE FACT THAT THE ASSESSEE FILED THE RETURN OF INCOME IN RES PONSE TO THE NOTICE U/S 142(1) OF THE ACT WITH A REASONABLE DELAY. THE DELAY VALID FR OM FEW DAYS TO AROUND 3 MONTH ONLY. THE SAID DELAY IS ATTRIBUTABLE TO THE NON AVA ILABILITY OF THE SEIZURE PAPERS AND ALSO DUE TO DEMAND FOR FINALIZATION OF THE RETURNS IN LARGE NUMBER OF GROUP CASES IN THE SAME YEAR. FURTHER HE MENTIONED THAT THE ASSES SMENTS WERE EVENTUALLY COMPLETED U/S 144 OF THE ACT IS NOT DUE TO NON COMP LIANCE TO THE ASSESSMENT PROCEEDINGS BUT DUE TO THE REJECTION OF THE BOOKS O F ACCOUNTS. FURTHER THE COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT THE RET URNS FILED BY THE ASSESSES WERE DULY TAKEN INTO CONSIDERATION BY THE ASSESSING OFFI CER WHILE PASSING THE REGULAR ITA NO. 187/A/2014 A.Y. 2010-11 5 ASSESSMENT ORDERS U/S 143(3) OF THE ACT AND THE COM PUTATION OF ASSESSED INCOME WAS MADE AFTER DUE COGNIZANCE OF THE RETURNED INCOM E. WHEN THE ASSESSMENTS WERE SO COMPLETED THE PENALTIES U/S 271(1)(B) OF T HE ACT ARE NOT SUSTAINABLE ETC. IN VIEW OF THE PRESUMPTION THAT THE ASSESSEE CO-OPERAT ED WITH THE DEPARTMENT BY FURNISH THE REQUISITE INFORMATION/DOCUMENTS WHILE C OMPLETING THE BLOCK/REGULAR ASSESSMENTS AS THE CASE MAY BE. 5. ON THE OTHER HAND LD. DR FOR THE REVENUE MENTIO NED THAT THE ASSESSEE IS NON CO-OPERATIVE AND THEREFORE THE PENALTIES WERE RIGHTLY LEVIED. 6. IN THIS REGARD LEARNED COUNSEL RELIED ON THE DE CISION OF CO-ORDINATE BENCH IN THE CASE OF NOOR COTTAGE PVT. LTD. VS. ITO ITA NO. 87/A/2014 D ATED 20.06.2014. 7. FURTHER LEARNED COUNSEL RELIED ON THE DECISION OF DELHI TRIBUNAL ORDER DATED 10.08.2007 IN THE CASE OF AKHIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST VS. ASSISTANT DIRECTOR OF INCOME REPORTED IN (2008) 115 TTJ 0419 (DEL). FOR READY REFERENCE HE REPRODUCE FROM THE SAID ORDER AS UNDE R: PENALTY UNDER S. 271(1)(B)-VALIDITY ASSESSMENT MAD E UNDER S. 143(3)- ASSESSMENT HAVING BEEN MADE U/S 143(3) AND NOT UNDE R S. 144 IT MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEE DINGS WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMMITTED EARLI ER WERE IGNORED BY THE AO HENCE PENALTY U/S 271(1)(B) COULD NOT BE LEVIED . CONCLUSION: ASSESSMENT HAVING BEEN MADE U/S 143(3) AND NOT UNDE R S. 144 IT MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEE DINGS WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMMITTED EARLI ER WERE IGNORED BY THE AO HENCE PENALTY U/S 271(1)(B) COULD NOT BE LEVIED .. ..2.5 WE ALSO FIND THAT FINALLY THE ORDER WAS PASSE D U/S 143(3) AND NOT U/S 144 OF THE ACT. THIS MEANS THAT SUBSEQUENT COMPLIAN CE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND T HE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE AO. THEREFORE IN SUCH CIRCUMSTANCES THERE COULD HAVE BEEN NO REASON TO COME TO THE CONCLUSION THAT THE DEFAULT WAS WILLFUL. 2.6 IN VIEW OF THE AFORESAID DISCUSSION IT IS HELD THAT THE LD. CIT(A) WAS NOT RIGHT IN UPHOLDING THE LEVY OF PENALTY. THUS THE A PPEAL IS ALLOWED. 8. FURTHER HE RELIED ON THE DECISION IN THE CASE O F PAIGAM IMPEX PVT. LTD. VS. ACIT ITA NO. 4787 TO 4791/DEL/2013 DATED 06.02.2014 . IN THIS REGARD HE REPRODUCED PARA 5 AND 5.1 FROM THE SAID ORDER AS UN DER:- ITA NO. 187/A/2014 A.Y. 2010-11 6 5. HAVING HEARD THE LD. SR. DR AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD IN THE ABOVE MENTIONED FACTUAL MATRIX WE ARE OF TH E VIEW THAT IN THE FACTS OF THE PRESENT CASE THERE IS NOTHING ON RECORD TO SHOW THAT PENAL ACTION WAS WARRANTED AS IN ALL THESE YEARS ON THE SPECIFIC DA TE VERY LITTLE TIME WAS GIVEN BY THE AO TO THE ASSESSEE TO OFFER EXPLANATION. MOR EOVER THE RETURNED INCOME WAS ACCEPTED VIDE ORDER U/S 153A R.W.S. 143( 3) FOR EACH OF THE YEARS EVIDENT FROM THE COPIES FILED. IN THESE FACTS IT CA N BE SAFELY CONCLUDED THAT THE SUBSEQUENT COMPLIANCE IN ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE AO WHICH ARE THE PRINCIPLES LAID DOWN BY THE DECISION BY THE CO-ORDINATE BENCH IN THE CASE OF AKHIL BHARTIYA SHIKSHAK SANGH BHAWAN TRUST VS. ACIT (2008) 115 TTJ (DELHI) 419 RELIED UPON THE ASSESSEE IN ITS GROUND NO. 4 AND WHICH HAS BEEN FOLLOWED IN VARIOUS ORDERS BY CO-ORDINATE BENCHES. REFERENCE MAY BE MADE TO ORDER DATED 31.01.2014 IN THE CASE OF M/ S. MANJUSHA MADAN VS. DCIT IN ITA NO. 4698 TO 4703/DEL/2013. FOR READY RE FERENCE WE REPRODUCE FROM THE SAID ORDER AS UNDER:- 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS A ND PERUSED THE RECORDS. WE FIND CONSIDERABLE COGENCY IN THE LD. COUNSEL OF THE ASSESSEES SUBMISSION THAT THE SHOW CAUSE NOTICE DOES NOT MENTIONED ABOUT THE NON-COMPLIANCE OF NOTICE ON WHICH PENALTY HAS BEEN LEVIED. HENCE ASSUMPTION OF JURISDICTION IS NOT PROPER. WE FURTHER FIND THAT IN THESE CASES THE AO HAS ASKE D EXPLANATION OF QUESTIONS AND ASSESSEE WAS GIVEN ONLY 7 DAYS TIME. IN THESE CIRCU MSTANCES IN OUR CONSIDERED OPINION THE ASSESSEE WAS NOT GIVEN PROPER OPPORTUN ITY AND IN THE SAME SITUATION THIS TRIBUNAL IN ITA NO. 4239/DEL/2013 IN THE CASE OF SHIVAANSH ADVERTISING AND PUBLICATIONS (P) LTD. VIDE ITS ORDER DATED 03.01.201 4 HAS DELETED THE SIMILAR PENALTY HOLDING AS UNDER:- WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATER IAL PLACED BEFORE US. THE PENALTY HAD BEEN LEVIED BY THE ASSESSING OFFICER FO R NON-COMPLIANCE OF THE NOTICE DATED 8.11.2010. FROM THE ASSESSMENT ORDER IT IS E VIDENT THAT THE NOTICE U/S 142(1)/143(2) DATED 8.11.2010 ALONGWITH THE DETAILE D QUESTIONNAIRE WAS ISSUED FIXING THE CASE FOR 18.11.2010. THESE DETAILS HAVE BEEN MENTIONED BY THE ASSESSING OFFICER IN PARAGRAPH 2 PAGES 1 OF THE ASS ESSMENT ORDER. THUS TOTAL TEN DAYS TIME WAS ALLOWED FROM THE DATE OF ISSUE OF TH E NOTICE. IN THE ASSESSMENT ORDER THE ASSESSING OFFICER HAS NOT MENTIONED THE DATE ON WHICH SUCH NOTICE WAS SERVED UPON THE ASSESSEE. THEREFORE IN OUR OPINION THE TIME OF LESS THAN TEN DAYS ALLOWED BY THE ASSESSING OFFICER FOR COMPLYING WITH THE DETAILED QUESTIONNAIRE CANNOT BE SAID TO BE A SUFFICIENT TIM E BEING ALLOWED T OTHE ASSESSEE AND THEREFORE FAILURE OF THE ASSESSEE TO COMPLY W ITH SUCH NOTICE CANNOT BE SAID TO BE A DEFAULT WHICH MAY JUSTIFY THE LEVY OF PENAL TY US 271(1)(B) OF THE ACT. ACCORDINGLY THE SAME IS CANCELLED. 8. FURTHERMORE WE ALSO NOTE THAT ASSESSMENT IN THI S CASE WERE COMPLETED U/S 143(3) OF THE I.T. ACT IT DOES MEAN THE SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE. THE DECISION RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE AS ABOVE ALSO COME TO THE RESCUE OF THE ASSESSEE. 5.1 IN VIEW OF THE DETAILED REASONING ON FACTS AND LAW THE PENALTY IMPOSED IN EACH OF THE YEARS IS QUASHED. THE SAID O RDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF. ITA NO. 187/A/2014 A.Y. 2010-11 7 9. FURTHER WE HAVE PERUSED ANOTHER CO-ORDINATE BEN CH DECISION IN THE CASE OF SMT. PRATIMA AGARWAL VIDE ITA NO. 163/ALLD/2014 FOR THE A.Y. 2009-10 DATED 26.06.2014 FOR IDENTICAL PROPOSITION THAT THE PENALTY U/S 271 (1)(B) IS NOT LEVIABLE WHEN THE RELEVANT ASSESSMENTS PROCEEDINGS WERE COMP LETED MEANINGFULLY UNDER PROVISION OF SECTION 143(3) OF THE ACT. ON PERUSAL OF THE SAID ORDER OF THE TRIBUNAL WE FIND THAT PARA 4 OF THE TRIBUNAL ORDER IS RELEVA NT WE EXTRACT THE SAME FOR THE PURPOSE OF COMPLETENESS OF THIS ORDER. IT IS RELEVA NT TO NOTICE THAT THE TRIBUNAL IN THIS ORDER RELIED ON THE DELHI BENCH DECISION IN TH E CASE OF AKHIL BHARTIYA SHMSHAK SANGH BHAWAN TRUST HE REPRODUCED THIS PARA 4 AS UN DER:- 4. WE HAVE HEARD RIVAL PARTIES AND HAVE GONE THROU GH THE MATERIAL PLACED ON RECORD. WE FIND THAT LD. CIT(A) HAD CONFI RMED THE PENALTY IMPOSED BY THE ASSESSING OFFICER FOR NOT MAKING COMPLIANCE OF THE NOTICE DATED 20.09.2011 U/S 142(1) OF THE ACT. LD. CIT(A) HAD N OTED THAT EVEN IN RESPONSE TO A SHOW CAUSE NOTICE U/S 271(1)(B) DATED 07.012.2011 REQUIRING THE ASSESSEE TO SHOW CAUSE ON 07.02.2012 AS TO WHY THE PENALTY U/S 271(1)(B) SHOULD NOT BE LEVIED WAS NOT REPLIED. TH IS SHOW CAUSE WAS ALSO NOT COMPLIED WITH. HOWEVER WE OBSERVE THAT THE ASS ESSMENT IN THIS CASE WAS COMPLETED U/S 143(3) AND THEREFORE IT IS IMPLIED THAT SUBSEQUENTLY THE ASSESSEE HAD ATTENDED TO THE ASSESSMENT PROCEEDINGS . THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF AKHIL BHARTIYA SHMSHAK SANGH BHAWAN TRUST VS. ADIT VIDE PARA 2.5 OF THE SAID ORDER HELD AS UNDER: - WE ALSO FIND THAT FINALLY THE ORDER WAS PASSED U/S 143(3) AND NOT U/S 144 OF THE ACT. THIS MEANS THAT SUBSEQUENT COMPLIANCE IN T HE ASSESSMENT PROCEEDINGS WAS CONSIDERED AS GOOD COMPLIANCE AND T HE DEFAULTS COMMITTED EARLIER WERE IGNORED BY THE ASSESSING OFFICER. THER EFORE IN SUCH CIRCUMSTANCES THERE COULD HAVE BEEN NO REASON TO C OME TO THE CONCLUSION THAT THE DEFAULT WAS WILLFUL. 5. WE FIND THAT THE CASE OF THE APPELLANT IS COVERE D BY THE JUDGMENT OF THE TRIBUNAL. RESPECTFULLY FOLLOWING THE SAME WE A LSO ALLOW THE APPEAL OF THE ASSESSEE. ALL THESE DECISIONS ARE RELEVANT FOR THE LEGAL PROP OSITION THAT THE PENALTIES LEVIED U/S 271(1)(B) R.W.S. 142(1) FOR NON FURNISHING OF THE D OCUMENTS ARE NOT SUSTAINABLE WHEN RELEVANT ASSESSMENTS WERE COMPLETED MEANINGFUL LY AFTER DUE PROCESS OF SCRUTINY UNDER THE PROVISION OF SECTION 153C R.W.S 143(3)/144 OF THE ACT. CONSIDERING THE SAME WE FIND THE PRESENT CASE THE ASSESSMENTS WERE COMPUTES AFTER SCRUTINY. THEREFORE WE FIND THAT THESE ARE N OT FIT CASES FOR LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. ACCORDINGLY GROUND RAISED BY ALL THESE APPEALS ARE ALLOWED. ITA NO. 187/A/2014 A.Y. 2010-11 8 10. IN THE RESULT ALL THE 17 APPEALS OF THE ASSESSEE ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF APRIL 2015. SD/- SD/- (C. N. PRASAD) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER ALLAHABAD DATED: 30.04.2015 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED ALLAHABAD THE CIT(A) CONCERNED ALLAHABAD THE DR BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT ALLAHABAD.