M/s Tayal Concast (P) Ltd., Muzaffarnagar v. DCIT, New Delhi

ITA 2113/DEL/2009 | 2005-2006
Pronouncement Date: 22-03-2010 | Result: Allowed

Appeal Details

RSA Number 211320114 RSA 2009
Bench Delhi
Appeal Number ITA 2113/DEL/2009
Duration Of Justice 10 month(s) 3 day(s)
Appellant M/s Tayal Concast (P) Ltd., Muzaffarnagar
Respondent DCIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 22-03-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 22-03-2010
Date Of Final Hearing 22-03-2010
Next Hearing Date 22-03-2010
Assessment Year 2005-2006
Appeal Filed On 19-05-2009
Judgment Text
I.T.A.NO. 2113 /DEL/09 1/5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H NEW DELHI) BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER I.T.A. NO.2113 /DEL/2009 ASSESSMENT YEAR : 2005-6 M/S TAYAL CONCAST (P) LTD. DCIT 321-SANJAY MARG CIRCLE-1 MUZAFFARNAGAR. V. MUZAFFANAGAR. (APPELLANT) (RESPONDENT) PAN /GIR/NO.AABCT-1327-P APPELLANT BY : WRITTEN SUBMISSIONS. RESPONDENT BY : SHRI NK CHAND SR. DR. ORDER PER A.K. GARODIA AM: THIS IS AN ASSESSEE'S APPEAL DIRECTED AGAINST THE O RDER OF LD CIT(A) MUZAFFARNAGAR DATED 12.2.2009 FOR ASSESSMENT YEAR 2 005-06. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER :- 1. THAT THE ORDER IS AGAINST LAW AND FACTS ON RECOR D. 2. THAT THE LD ASSESSING OFFICER DID NOT MENTION I N THE PENALTY NOTICE THE NUMBER AND DATE OF NOTICE WHICH WAS NOT COMPLIED WI TH. 3. THAT THE LD ASSESSING OFFICER DID NOT MENTION IN THE PENALTY NOTICE THE SECTION IN WHICH NOTICE WAS ISSUED WHICH WAS NOT CO MPLIED WITH. 4. THAT THE LD ASSESSING OFFICER PASSED U/S 271(1)( B) FOR DEFAULT ON 8.11.2006 AND NOTICE U/S 271(1)(B) WAS ISSUED ON 27 .12.2007 I.E. AFTER ONE YEAR AND THIS IS AGAINST NATURAL JUSTICE. . I.T.A. NO2113/DEL/09 2/5 5. THAT THE LD ASSESSING OFFICER DID NOT MENTION TH AT THERE WAS MENS REA IN THE DEFAULT AND ORDER IS NOT VALID. 3. THIS APPEAL OF THE ASSESSEE WAS EARLIER DECIDED EX PARTE QUA THE ASSESSEE AS PER TRIBUNAL ORDER DATED 30.7.2009. THE REAFTER THE ASSESSEE FILED A MISC. APPLICATION POINTING OUT THAT THE WRITTEN SUB MISSIONS WERE SENT THROUGH REGD. POST BY THE ASSESSEE BEFORE THE TRIBUNAL AND IN THE IMPUGNED ORDER DATED 30.7.2009 SUCH WRITTEN SUBMISSIONS OF THE ASSESSEE WERE NOT CONSIDERED. IN THE ORDER DATED 22.1.2010 IN MISC. APPLICATION NO.5 63/DEL/2009 IT IS NOTED BY THE TRIBUNAL THAT THE ENVELOP CONTAINING WRITTEN SUBMIS SIONS OF THE ASSESSEE IS ON THE FILE AND SUCH WRITTEN SUBMISSIONS WERE FORWARDE D BY THE ASSESSEE TO THE TRIBUNAL ON DATED 21.7.2009 AS PER THE POSTAL RECEI PT AND STAMP. THE EARLIER TRIBUNAL ORDER WAS PASSED ON 30.7.2009 AND HENCE T HE TRIBUNAL RECALLED THAT EX PARTE ORDER DATED 30.7.2009 FOR A FRESH DECISION AF TER CONSIDERING WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. THE APPEAL WAS F IXED ON 22.3.2010 FOR HEARING. ON THIS DATE ALSO NONE APPEARED ON BEHAL F OF THE ASSESSEE AND HENCE WE PROCEED TO DECIDE THIS APPEAL OF THE ASSESSEE AF TER CONSIDERING THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AND AFTER HEARING THE LD DR OF THE REVENUE. 4. LD DR OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. IN THE WRITTEN SUBMISSIONS OF THE ASSESSEE IT H AS BEEN SUBMITTED THAT THE ASSESSEE HAS APPEARED ON VARIOUS DATES BEFORE THE A SSESSING OFFICER ON DATED 31.1.2007 19.2.2007 23.2.2007 6.3.2007 30.4.200 7 7.5.2007 18.5.2007 28.5.2007 8.6.2007 19.6.2007 28.6.2007 9.7.2007 16.7.2007 AND 24.12.2007. IT IS ALSO SUBMITTED BY THE ASSESSEE THAT THERE IS NO NONE COMPLIANCE BY THE ASSESSEE FOR ANY OTHER NOTICE OF HEARING. RELIANCE WAS PLACED ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF AKHIL BHARTIYA SHI KSHAK SANG BHAWAN TRUST V. ACIT AS REPORTED IN 115 TTJ 419 (DEL.). . I.T.A. NO2113/DEL/09 3/5 6. WE HAVE HEARD THE SUBMISSIONS OF THE LD DR OF TH E REVENUE AND THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THE PENALTY ORDER IT IS NOTED BY THE ASSESSING OFFICER THAT A NOTICE U/S 143(2) WAS ISSUED ON 26.10.2006 T O THE ASSESSEE COMPANY AND WAS DULY SERVED UPON THE ASSESSEE FIXING THE DATE O F HEARING ON 18.11.2006. THE ASSESSING OFFICER SAYS THAT THERE IS NO COMPLIA NCE OF THIS NOTICE ISSUED BY HIM ON 26.10.2006.WE FIND THAT COPY OF ASSESSMENT O RDER IS ALSO FILED BY THE ASSESSEE IN PAPER BOOK ALONG WITH THE WRITTEN SUBMI SSIONS OF THE ASSESSEE AND THE COPY OF THE ASSESSMENT ORDER IS AVAILABLE ON PA GES 4-12 OF THE PAPER BOOK. ON PAGE NO.1 OF THE ASSESSMENT ORDER WE FIND THAT THE ASSESSING OFFICER SAYS THAT NOTICE U/S 143(2) WAS ISSUED ON 26.10.2006 BUT IN THE ASSESSMENT ORDER THE ASSESSING OFFICER DOES NOT SAY AS TO WHAT WAS THE D ATE OF HEARING FIXED IN THE SAID NOTICE U/S 143(2) DATED 26.10.2006 AND WHETHER THERE WAS COMPLIANCE BY THE ASSESSEE ON SUCH DATE OR NOT. THE ASSESSING OF FICER SAYS THAT NOTICE U/S 142(1) WAS ISSUED ALONG WITH THE DETAILED QUESTIONN AIRE ON 22.1.2007 FIXING THE DATE OF COMPLIANCE ON 31.1.2007. THE ASSESSING OFF ICER HAS NOTED THAT ON THIS DATE LD AR OF THE ASSESSEE SHRI PREM PRAKASH AGARW AL ADVOCATE APPEARED ON BEHALF OF THE ASSESSEE FROM TIME TO TIME FILED VARI OUS REPLIES AND DETAILS WHICH WERE DISCUSSED AND PLACED ON RECORD. THE RELEVANT P ARA OF THE ASSESSMENT ORDER IS PARA NO.1 WHICH IS REPRODUCED BELOW:- RETURN DECLARING LOSS AT RS.13 64 000/- WAS FILED BY THE ASSESSEE COMPANY ON 31.10.2005 WHICH WAS PROCESSED ON THE RE TURNED LOSS ON 8.6.2006. LATER ON ASSESSEES CASE WAS SELECTED FOR SCRUTINY AS PER NORMS LAID DOWN BY THE CBDT ACCORDINGLY NOTICE U/S 143(2) WAS ISSUED ON 26.10.2006 AND SERVED THROUGH REGD. POST VIDE RE CEIPT NO.4555 WHICH IS ON RECORD. NOTICE U/S 142(1) WAS ISSUED ALONG WI TH DETAILED QUESTIONNAIRE ON 22.1.2007 FIXING THE DATE FOR COMP LIANCE ON 31.1.2007. ON THE DATE FIXED SHRI PREM PRAKASH AGARWAL ADVOCA TE APPEARED ON BEHALF OF THE ASSESSEE COMPANY FROM TIME TO TIME F ILED VARIOUS REPLIES AND DETAILS WHICH WERE DISCUSSED AND PLACED ON RECO RD. BOOKS OF . I.T.A. NO2113/DEL/09 4/5 ACCOUNTS PRODUCED WERE IMPOUNDED AND EXAMINED AND C ASE WAS DISCUSSED WITH HIM. 7. THEREAFTER ALSO VARIOUS DATES OF HEARING WERE F IXED BY THE ASSESSING OFFICER AND THE ASSESSING OFFICER HIMSELF HAS NOTED THAT THERE IS COMPLIANCE BY THE ASSESSEE AND IN THE ASSESSMENT ORDER THERE IS NO MENTION THAT THERE WAS A NON COMPLIANCE BY THE ASSESSEE. AS PER WRITTEN SUBM ISSIONS OF THE ASSESSEE THE ASSESSEE HAS DULY APPEARED BEFORE THE ASSESSING OFFICER ON VARIOUS DATES AS NOTED BY US ABOVE. THE ASSESSING OFFICER ALSO SA YS IN THE FIRST PARA OF THE ASSESSMENT ORDER AS REPRODUCED ABOVE THAT SHRI PREM PRAKASH AAGARWAL ADVOCATE APPEARED ON BEHALF OF THE ASSESSEE FROM TI ME TO TIME FILED VARIOUS REPLIES AND DETAILS WHICH WERE DISCUSSED AND PLACED ON RECORD. THE ASSESSING OFFICER ALSO SAYS THAT BOOKS OF ACCOUNTS WERE PRODU CED AND WERE IMPOUNDED AND EXAMINED AND CASE WAS DISCUSSED WITH HIM. THER E IS NO MENTION IN THIS PARA OF THE ASSESSMENT ORDER THAT THERE IS NON COMP LIANCE OF NOTICE U/S 143(2) OF THE ACT ISSUED BY THE ASSESSING OFFICER ON 26.10.20 06. EVEN IF THERE IS NON COMPLIANCE OF THE INITIAL NOTICE ISSUED BY THE ASSE SSING OFFICER U/S 143(2) IN VIEW OF COMPLIANCE OF THE ASSESSEE TO ALL OTHER NOTICES ISSUED THEREAFTER WE FEEL THAT THE PENALTY IMPOSED BY THE ASSESSING OFFICER U/S 27 1(1)(B) IS NOT JUSTIFIED. IN THE CASE OF AKHIL BHARTIYA SHIKSHAK SANG BHAWAN TRUST ( SUPRA) ALSO IT WAS HELD BY THE TRIBUNAL THAT ASSESSMENT HAVING BEEN MADE U/S 143(3) AND NOT U/S 144 IT MEANS THAT SUBSEQUENT COMPLIANCE IN THE ASSESSMENT PROCEEDING WAS CONSIDERED AS GOOD COMPLIANCE AND THE DEFAULTS COMM ITTED EARLIER WERE IGNORED BY THE ASSESSING OFFICER AND HENCE PENALTY U/S 271( 1)(B) CANNOT BE LEVIED. IN THE PRESENT CASE ALSO ASSESSMENT ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER U/S 143(3) AND NOT U/S 144 AND THERE IS COMPLIANCE BY THE ASSESSEE TO ALL SUBSEQUENT NOTICES ISSUED BY THE ASSESSING OFFICER AND REGARDING FIRST NOTICE U/S 143(2) ISSUED BY THE ASSESSING OFFICER ON 26.10.200 6 ALSO THERE IS NO MENTION IN THE ASSESSMENT ORDER AS TO WHAT WAS THE DATE OF HEARING FIXED AND WHETHER THE SAME WAS COMPLIED WITH BY THE ASSESSEE OR NOT. RESPECTFULLY FOLLOWING THIS TRIBUNAL DECISION AND CONSIDERING THE FACTS OF THE PRESENT CASE WE FEEL THAT THE . I.T.A. NO2113/DEL/09 5/5 PENALTY IMPOSED BY THE ASSESSING OFFICER IS NOT JUS TIFIED AND HENCE WE DELETE THE SAME. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED. 9. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATER OF HEARING I.E. ON 22 ND MARCH 2010. SD/- SD/- (R.P. TOLANI) (A.K. GA RODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 22.3.2010. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)- NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DELHI. TRUE COPY. BY ORDER (ITAT NEW DELHI).