Shri Sureshbhai Diyabhai Maniya, v. The Income tax Officer,Ward-2(4),, Bhavnagar

ITA 2643/AHD/2008 | 2004-2005
Pronouncement Date: 19-08-2010 | Result: Partly Allowed

Appeal Details

RSA Number 264320514 RSA 2008
Assessee PAN AKJPM8802B
Bench Ahmedabad
Appeal Number ITA 2643/AHD/2008
Duration Of Justice 2 year(s) 27 day(s)
Appellant Shri Sureshbhai Diyabhai Maniya,
Respondent The Income tax Officer,Ward-2(4),, Bhavnagar
Appeal Type Income Tax Appeal
Pronouncement Date 19-08-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 19-08-2010
Date Of Final Hearing 16-08-2010
Next Hearing Date 16-08-2010
Assessment Year 2004-2005
Appeal Filed On 23-07-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER AND SHRI A.N. PAHUJA ACCOUNTANT MEMBER DATE OF HEARING : 16/08/2010 DRAFTED ON: 17 /08/2010 ITA NO.2643/AHD/2008 ASSESSMENT YEAR : 2004-05 SURESHBHAI DIYALBHAI MANIYA VILLAGE:GORADKA TALUKO: GADHADA DIST: BHAVNAGAR VS. ITO WARD-2(4) BHAVNAGAR PAN/GIR NO. : AKJPM 8802 B (APPELLANT) .. (RESPONDENT) APPELLANT BY : NONE (WRITTEN SUBMISSION) RESPONDENT BY: SHRI K.M. MAHESH SR. D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XX AHMEDABAD DATED 18/03/2008 PASSED FOR ASSESSMENT YEAR 2004-0 5. 2. GROUND RAISED AS PER GROUNDS OF APPEAL ARE NOT I N ACCORDANCE WITH ITAT RULE 8. HOWEVER REVOLVE AROUND A SINGLE ISSU E OF LEVY OF PENALTY U/S.271(1)(B) OF THE I.T. ACT 1961 OF RS.50 000/- WHICH WAS CONFIRMED BY THE LEARNED CIT(APPEALS). 3. ON THE DATE OF HEARING NO ONE WAS PERSONALLY PR ESENT HOWEVER A WRITTEN SUBMISSION ALONG WITH COMPILATION IS PLAC ED BEFORE US. WE ITA NO. 2643/AHD/2008 SURESHBHAI DIYALBHAI MANIYA VS. ITO ASST.YEAR - 2004-05 - 2 - HAVE CONSIDERED THE SAME AND ALSO HEARD LEARNED DEP ARTMENTAL REPRESENTATIVE SHRI K.M. MAHESH. 4. AN ASSESSMENT U/S.144 WAS MADE VIDE AN ORDER DAT ED 20/11/2006. AS PER THIS ASSESSMENT ORDER THE APPELLANT HAD DIS CLOSED AN INCOME OF RS.54 050/- AND AN AGRICULTURAL INCOME OF RS.4 90 0 00/- HOWEVER THE ASSESSMENT WAS MADE ON THE ASSESSED INCOME OF RS.12 15 100/-. THE ASSESSMENT WAS CHALLENGED AND SUBSTANTIAL RELIEF WA S GRANTED BY THE LEARNED CIT(APPEALS) VIDE AN ORDER DATED 19/06/2008 IN APPEAL NO.CIT(A)-XX/173/06-07 AND THEREAFTER APPEAL EFFE CT WAS GIVEN VIDE ORDER DATED 19/08/2008 AND THE INCOME WAS REVISED A T RS.58 604/-. AS FAR AS THE QUESTION OF IMPUGNED PENALTY IS CONCERNE D WHILE LEVYING THE PENALTY U/S.271(1)(B) OF THE I.T. ACT 1961 VIDE OR DER DATED 25/05/2007 THE ASSESSING OFFICER HAS HELD THAT THE ASSESSEE HA D DELIBERATELY FAILED TO APPEAR FIVE TIMES DURING THE ASSESSMENT PROCEEDINGS THEREFORE FOR EACH DEFAULT PENALIZED BY A SUM OF RS.10 000/-. THUS A TOTAL PENALTY OF RS.50 000/- WAS LEVIED. IT WAS CONFIRMED BY THE FI RST APPELLATE AUTHORITY. 6. CERTAIN INHERENT INCONSISTENCY HAS BEEN OBSERV ED BY US. AS PER THE ASSESSMENT ORDER PASSED U/S.144 OF THE I.T. ACT 1961 DATED 20/11/2006 THERE WAS A MENTION OF THREE DEFAULTS O F NON-COMPLIANCE OF THE SAID NOTICE AS IS EVIDENT FROM THE OBSERVATIONS OF THE ASSESSING OFFICER VIDE PARAGRAPH NO.2; REPRODUCED BELOW:- 2. THE CASE WAS SELECTED FOR SCRUTINY AND A NOTIC E U/S.143(2) OF THE I.T. ACT 1961 ISSUED ON 13.04.2005 WAS DULY S ERVED UPON THE ASSESSEE ON 20.04.2005 BY HAND. NOTICE U/S.142(1) ALONG WITH A QUESTIONNAIRE ISSUED ON 31.08.2006 WAS SERVED BY R PAD ON ITA NO. 2643/AHD/2008 SURESHBHAI DIYALBHAI MANIYA VS. ITO ASST.YEAR - 2004-05 - 3 - 15.08.2006 IN RESPONSE TO WHICH THE ASSESSEE SOUGH T ADJOURNMENT VIDE HIS LETTER DTD.19.09.2006 RECEIVED THROUGH R.P .A.D. ON 22.09.2006. CONSIDERING ASSESSEES ADJOURNMENT APP LICATION HEARING IN HIS CASE WAS FIXED ON 13.10.2006 VIDE TH IS OFFICE LETTER DTD. 03.10.2006 DULY SERVED UPON THE ASSESSEE ON 0 5.10.2006 BY R.P.A.D. ON 13.10.2006 THE ASSESSEE ATTENDED AND FILED ANOTHER APPLICATION FOR ADJOURNMENT CONSIDERING WHICH HEAR ING WAS REFIXED ON 18.10.2006 AT 03.30 PM. ON 18.10.2006 N EITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE ATTENDED OR FILED APPLICATION FOR ADJOURNMENT. AFTER LAPSE OF A PERI OD OF MORE THAN 15 DAYS SINCE THE HEARING FIXED ON 18.10.2006 ANOT HER NOTICE DTD. 06.11.2006 ISSUED U/S.142(1) OF THE I.T.ACT 1961 W AS SENT TO THE ASSESSEE WHICH WAS DULY SERVED UPON HIM ON 11.11.20 06 BY RPAD. VIDE THIS NOTICE DTD. 06.11.2006 HEARING WAS FIXED ON 16.11.2006 AT 11.30 AM AND THE ASSESSEE WAS SPECIFICALLY APPRI SED THAT THE MATTER IS TIME BARRING AND IF HE FAILS TO COMPLY P ENALTY PROCEEDINGS U/S.271(1)(B) OF THE I.T.ACT 1961 WILL BE RESORTED TO AND ASSESSMENT IN HIS CASE WILL BE FINALIZED U/S.14 4 OF THE I.T.ACT 1961. OPERATIVE PART OF THE NOTICE IS AS UNDER: PLEASE REFER TO THE FOLLOWING: I. NOTICE U/S.142(1) OF THE I.T. ACT 1961 ISSUED BY THIS OFFICE ON 31.08.2006 WHEREBY CERTAIN DETAILS AS PER ANNEXURE-A ENCLOSED WITH THAT NOTICE WERE REQUIRED TO BE FURNISHED. THE SAID LETTER WAS DULY SERVED UPON YO U THROUGH RPAD. II. THIS OFFICE LETTER DTD. 03.10.2006 WHEREBY IN R ESPONSE TO YOUR ADJOURNMENT APPLICATION DTD. 19.09.2006 HEARI NG WAS FIXED ON 13.10.2006. III. YOUR ADJOURNMENT APPLICATION DTD. 13.10.2006 A ND THIS OFFICE ORDER SHEET ENTRY DTD. 13.10.2006 WHEREBY HE ARING IN YOUR CASE WAS FIXED ON 18.10.2006. FROM THE ABOVE DETAILS IT IS CLEAR THAT HEARING IN YOUR CASE HAS BEEN FIXED THREE TIMES BUT TILL DATE NO DETAILS AND BOOKS OF ACCOUNTS HAVE BEEN FURNISHED IN THIS OFFICE. ITA NO. 2643/AHD/2008 SURESHBHAI DIYALBHAI MANIYA VS. ITO ASST.YEAR - 2004-05 - 4 - 6.1. HOWEVER WHEN THE PENALTY WAS LEVIED THE ASSE SSING OFFICER HAS MENTIONED FIVE DEFAULTS OF NON-COMPLIANCE AS NOTED IN THE IMPUGNED PENALTY ORDER; REPRODUCED BELOW:- NONE COMPLIANCE OF STATUTORY NOTICES U/S.143(2) & 142(1) ISSUED BY ASSESSING OFFICER IS AS DETAILED BELOW. I. NOTICE U/S.143(2) WAS ISSUED ON 13.04.2005 WHIC H WAS SERVED ON THE ASSESSEE ON 20.04.2005 REQUIRING TO A TTEND ON 26.04.2005 BUT ASSESSEE MADE NO COMPLIANCE. II. NOTICE U/S.142(1) OF THE I.T.ACT 1961 ISSUED BY TH IS OFFICE ON 31.08.2006 WHEREBY CERTAIN DETAILS AS PER ANNEXURE- A ENCLOSED WITH THAT NOTICE WERE REQUIRED TO BE FURNI SHED. THE SAID LETTER WAS DULY SERVED UPON YOU THROUGH RPAD. III. THIS OFFICE LETTER DTD. 03.10.2006 WHEREBY IN RESPO NSE TO YOUR ADJOURNMENT APPLICATION DTD. 19.09.2006 HEARI NG WAS FIXED ON 13.10.2006. IV. YOUR ADJOURNMENT APPLICATION DTD. 13.10.2006 AND TH IS OFFICE ORDER SHEET ENTRY DTD. 13.10.2006 WHEREBY HE ARING IN YOUR CASE WAS FIXED ON 18.10.2006. V. THIS OFFICE LETTER DTD. 06.11.2006 NARRATING THE AB OVE NON- COMPLIANCE HAS ALSO REMAINED UN-COMPLIED AND ULTIM ATELY THE ASSESSMENT WAS COMPLETED U/S.144 OF THE I.T.ACT 1961. FROM THE ABOVE IT IS CLEAR THAT AT FIVE OCCASIONS THE ASSESSEE HAS NOT ATTENDED / COMPLIED STATUTORY NOTICE ISSUED U/S .143(2) & 142(1) AND ACCORDINGLY HE HAS COMMITTED DEFAULT FOR WHICH PENALTY U/S.271(1)(B) IS LEVIABLE. ITA NO. 2643/AHD/2008 SURESHBHAI DIYALBHAI MANIYA VS. ITO ASST.YEAR - 2004-05 - 5 - 6.2. ON ACCOUNT OF THIS INCONSISTENCY WHETHER THER E WAS THREE DEFAULTS OR FIVE DEFAULTS FOR THE PURPOSE OF LEVY OF PENALT Y WE HAVE EXAMINED THE DATES OF COMPLIANCE AND DATES OF ISSUANCE OF NOTICE S AS EMERGED FROM THE WRITTEN SUBMISSION AND THE COMPILATION FILED BEFORE US. DATE-WISE DISCUSSION IS AS UNDER:- (I) A NOTICE U/S.143(2) OF THE I.T. ACT 1961 WAS ISSUE D ON 13/04/2005 SERVED ON 20/04/2005 AND THE DATE OF HEA RING WAS FIXED ON 26/04/2005. NO ONE ATTENDED. (II) A NOTICE U/S.142(1) OF THE I.T. ACT 1961 DATED 31/ 08/2006 SERVED ON 15/08/2006 WHICH WAS SERVED THROUGH RPAD AND VIDE A LETTER OF ADJOURNMENT DATED 19/09/2006 COMPL IANCE WAS MADE. (III) A LETTER DATED 03/10/2006 WAS ISSUED IN RESPONSE TO THE AFOREMENTIONED ADJOURNMENT APPLICATION AND THE DATE OF HEARING WAS FIXED ON 13/10/2006 WHICH WAS ATTENDED VIDE AN ADJOURNMENT APPLICATION AND THE CASE WAS ADJOURN ED FOR 18/10/2006. (IV) ON 18/10/2006 ADMITTEDLY NO ONE WAS PRESENT AND TH E PROCEEDINGS REMAINED UNATTENDED. (V) THE CASE WAS FINALLY FIXED FOR HEARING VIDE NOTICE U/S.142(1) OF THE I.T. ACT 1961 DATED 06/11/2006 WHICH WAS SE RVED ON 11/11/2006 THROUGH WHICH THE DATE OF HEARING WAS FI XED ON 16/11/2006. NO ONE ATTENDED AND THE ASSESSMENT WA S FRAMED U/S.144 OF THE I.T. ACT 1961 ON 20/11/2006. 7. WITH THIS FACTUAL BACKGROUND WE HAVE FOUND THAT IN THE MONTH OF OCTOBER/NOVEMBER THE APPELLANT WAS UNWELL AND STAT ED TO BE SUFFERED BY A DISEASE CHIKEN GUNIYA . A CERTIFICATE OF THE DOCTOR IS IN THE COMPILATION THROUGH WHICH THE DATES OF SICKNESS HAV E STARTED FROM ITA NO. 2643/AHD/2008 SURESHBHAI DIYALBHAI MANIYA VS. ITO ASST.YEAR - 2004-05 - 6 - 16/10/2006 TO 18/10/2006 AND 14/11/2006 TO 16/11/20 06. FROM THEE DETAILS THOUGH IT IS APPARENT THAT THE ASSESSEE MI GHT BE FACING HEALTH PROBLEM FROM MID-OCTOBER TILL MID-NOVEMBER-2006 BUT THIS FACT COULD ALSO NOT BE DENIED THAT IN THE PAST THE APPELLANT H AS NOT PROMPTLY COMPLIED WITH THE NOTICES OF HEARING. THOUGH IT I S ALSO EVIDENT THAT ON TWO OCCASIONS ADJOURNMENT APPLICATIONS HAVE BEEN MO VED BUT THE SATISFACTORY COMPLIANCE WAS NOT MADE. AS FAR AS TH E FIRST NOTICE U/S.143(2) OF THE I.T. ACT 1961 DATED 13/04/2005 W AS CONCERNED IT IS AN ADMITTED POSITION THAT THE SAME WAS SERVED BY HAND ON 20/04/2005 BUT IT WAS NOT COMPLIED WITH. FOR THIS DATE OF NON-COMPL IANCE THERE WAS NO SATISFACTORY EXPLANATION RATHER THERE WAS NO EXPLAN ATION AT ALL. AS FAR AS THE BENEFIT OF REASONABLE CAUSE BE CONSIDERED TH E SAME CAN BE APPLIED ONLY FOR THE MONTH OF OCTOBER AND NOVEMBER WHEN THE ASSESSEE HAD AN EXCUSE OF ILLNESS AS ALSO CERTIFIED BY THE DOCTOR. THIS BENEFIT CAN BE GRANTED IN THE LIGHT OF THE TWO DECI SIONS CITED BEFORE US; NAMELY WOODWARD GOVERNORS INDIA (P) LTD. VS. CIT VS. CIT REPORTED AS (2002)253 ITR 745 (DEL) AND PARMESHWARI TEXTILES V S. ITO REPORTED AS (2005 92 TTJ (JD) 764. BUT STILL THE NOTICE U/S.1 43(2) OF THE I.T. ACT 1961 DATED 13/04/2005 REMAINED UNATTENDED AND FOR T HAT EVEN THE QUESTION OF REASONABLE CAUSE DO NOT ARISE BECAUSE THE APPELLANT HAS NOT GIVEN ANY EXPLANATION WHATSOEVER ALTOGETHER THEREF ORE ATLEAST FOR THIS NON-COMPLIANCE THE ASSESSEE CAN BE HELD AS DEFAULTE R AND FOR THAT A PENALTY AS PRESCRIBED UNDER THE PROVISIONS OF RS.10 000/- DESERVES TO BE UPHELD. THUS UNDER THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS ALSO THE REASONS ASSIGNED HEREINABOVE THE PENALTY OF RS.10 000/- FOR ONE DEFAULT AS DISCUSSED HEREINABOVE IS AFFIRME D AND REST OF THE AMOUNT IS DIRECTED TO BE DELETED. ASSESSEES GROUN D IS PARTLY ALLOWED. ITA NO. 2643/AHD/2008 SURESHBHAI DIYALBHAI MANIYA VS. ITO ASST.YEAR - 2004-05 - 7 - 8. IN THE RESULT THE APPEAL OF THE ASSESSEE I S PARTLY ALLOWED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 19/ 08 /2010. SD/- SD/- ( A.N. PAHUJA ) ( MU KUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBE R AHMEDABAD; DATED 19/ 08 /2010 T.C. NAIR SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XX AHMEDABAD 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD