M/s Omshiv Buildtech Pvt Ltd, New Delhi v. Deputy Commissioner of Income-tax, New Delhi

ITA 4496/DEL/2015 | 2006-2007
Pronouncement Date: 17-11-2017 | Result: Allowed

Appeal Details

RSA Number 449620114 RSA 2015
Bench Delhi
Appeal Number ITA 4496/DEL/2015
Duration Of Justice 2 year(s) 4 month(s) 9 day(s)
Appellant M/s Omshiv Buildtech Pvt Ltd, New Delhi
Respondent Deputy Commissioner of Income-tax, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 17-11-2017
Appeal Filed By Assessee
Tags No record found
Order Result Allowed
Bench Allotted I
Tribunal Order Date 17-11-2017
Assessment Year 2006-2007
Appeal Filed On 08-07-2015
Judgment Text
ITA NOS.4496 TO 4498/DEL/2015 OMSHIV BUILDTECH PVT. LTD. ASSESSMENT YEARS-2006-07 TO 2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH NEW DELHI . & & & & )* )* )* )* ) ) ) ) BEFORE SHRI D. MANMOHAN VP AND SHRI MANOJ KUMAR AGGARWAL AM ) )) ) ./I.T.A. NOS.4496 TO 4498/DEL/2015 ( + + + + + + + + / ASSESSMENT YEARS: 2006-07 TO 2008-09) OMSHIV BUILDTECH PVT. LTD. FLAT NO.4 R.R. APARTMENTS 3-4 MANGLAPURI MEHRAULI NEW DELHI. / VS. DCIT CENTRAL CIRCLE - 15 (EARLIER CC-14) NEW DELHI. *. *. *. *. ) )) ) ./ ) )) ) ./PAN/GIR NO. AAACO-7989-B ( .0 .0 .0 .0 /APPELLANT ) : ( 12.0 12.0 12.0 12.0 / RESPONDENT ) ASSESSEE BY : SHRI GAUTAM JAIN & SHRI LALIT MOHAN LD. ADVOCATES REVENUE BY : SHRI KUMAR PRANAV LD. SR.DR ) ) ) ) 3 33 3 4 4 4 4 / DATE OF HEARING : 16/11/2017 3 33 3 4 4 4 4 / DATE OF PRONOUNCEMENT : 17/11/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEALS BY ASSESSEE FOR ASSESSMENT YEARS [AY] 2006-07 2007-08 & 2008-09 ASSAILS THE COMMON ORDER OF THE LD. COMMISSIONER OF INCOME-TAX (APPEALS)-XXVI [CIT(A)] NEW DELHI ITA NOS.4496 TO 4498/DEL/2015 OMSHIV BUILDTECH PVT. LTD. ASSESSMENT YEARS-2006-07 TO 2008-09 2 APPEAL NO.166/14-15; 167/14-15; 168/14-15 DATED 08/05/2015 BY RAISING THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL :- 1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS)-XXVI NEW DELHI HAS ERRED BOTH IN LAW AND ON FACTS IN UPHOLDING THE LEVY OF PENALTY OF RS.20 000/- U/S 271(1)(B) OF THE ACT. 2 THAT WHILE UPHOLDING THE LEVY OF PENALTY THE LEA RNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THAT ORDER L EVYING PENALTY WAS BASED ON FINDINGS CONTRARY TO THE ORDER OF ASSESSMENT AND OVERLOOKING THE REPLY FURNISHED BY THE APPELLANT DURING THE PENALTY PROCE EDINGS AND THEREFORE UNTENABLE IN LAW. 2.1 THAT THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS) HAS ALSO FAILED TO APPRECIATE THAT THERE WAS REASONABLE CAUSE ON THE P ART OF THE APPELLANT AND AS SUCH PENALTY SUSTAINED IS ILLEGAL INVALID AND U NTENABLE. 2.2 THAT ORDER OF THE LEARNED COMMISSIONER OF INCO ME TAX (APPEALS) IS OTHERWISE ALSO BASED ON FACTUAL MISAPPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND COMPLETE MISINTERPRE TATION OF THE PROVISIONS CONTAINED IN SECTION 271(1)(B) OF THE ACT. 3. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS OTHERWISE TOO CONFIRMED THE PENALTY WITHOUT PROVIDING FAIR REASO NABLE AND MEANINGFUL OPPORTUNITY AND AS SUCH ORDER PASSED IS CONTRARY TO THE PRINCIPLES OF NATURAL JUSTICE AND THEREFORE A NULLITY. IT IS THEREFORE PRAYED THAT THE PENALTY-LEVIED U/S 271(1)(B) OF THE ACT OF RS. 20 000/- AND UPHELD BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BE DELETED AND APPEAL OF THE APPELLANT COMPANY BE ALLOWED. SINCE THE FACTS ARE COMMON IN ALL THE APPEALS WE D ISPOSE OF THE SAME BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENI ENCE AND BREVITY. FIRST WE TAKE UP ITA NO. 4496/DEL/2015 WHERE THE AS SESSEE HAS BEEN SADDLED WITH A PENALTY OF RS.20 000/- U/S 271(1)(B) ON ACCOUNT OF NON- APPEARANCE ON TWO OCCASIONS DURING QUANTUM ASSESSME NT PROCEEDINGS. THE PENALTY WAS LEVIED BY LD. DEPUTY COMMISSIONER O F INCOME TAX [AO] CENTRAL CIRCLE-15 NEW DELHI VIDE ORDER DATED 09/05/2014 WHICH HAS SINCE BEEN CONFIRMED BY LD. CIT(A) AGAINST WHIC H THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 2.1 FACTS LEADING TO THE SAME ARE THAT THE ASSESSEE BEING RESIDENT CORPORATE ASSESSEE ENGAGED IN REAL ESTATE LAND TRADING & DEVELOPMENT ITA NOS.4496 TO 4498/DEL/2015 OMSHIV BUILDTECH PVT. LTD. ASSESSMENT YEARS-2006-07 TO 2008-09 3 WAS ASSESSED U/S 144 READ WITH SECTION 153A ON 18/03/2013 CONSEQUENT UPON REVISION ORDER PASSED U/S 264 ON 16 /03/2012 BY LD. COMMISSIONER OF INCOME TAX CENTRAL-II NEW DELHI. SINCE THE ASSESSEE FAILED TO MAKE ANY SUBMISSIONS BEFORE LD.AO THE SA ME RESULTED INTO BEST JUDGMENT ASSESSMENT U/S 144. FURTHER THE ASSESSEE FAILED TO MAKE APPEARANCE DURING ASSESSMENT PROCEEDINGS ON VARIOUS DATES AS REQUIRED BY LD. AO AND HENCE PENALTY PROCEEDINGS U /S 271(1)(B) WERE INITIATED IN THE QUANTUM ASSESSMENT ORDER. 2.2 CONSEQUENTLY THE ASSESSEE HAS BEEN SADDLED WIT H A PENALTY OF RS.20 000/- U/S 271(1)(B) VIDE ORDER DATED 09/05/20 14 FOR NON- APPEARANCE / NON-COMPLIANCE ON TWO DATES VIZ. 10/01 /2013 & 16/01/2013. THE ASSESSEE CONTESTED THE SAME ON THE PREMISE THAT NON- COMPLIANCE WAS BEYOND THE CONTROL OF THE ASSESSEE I N THE WAKE OF VARIOUS ON-GOING PROCEEDINGS AGAINST THE GROUP AND KEY PERSONS. HOWEVER NOT CONVINCED LD. AO LEVIED THE PENALTY @ RS.10000/- FOR EACH DEFAULT WHICH WAS CONTESTED WITHOUT ANY SUCCES S BEFORE LD. CIT(A) VIDE IMPUGNED ORDER DATED 08/05/2015 WHERE LD. CIT( A) ON FACTUAL MATRIX CONFIRMED THE ACTION OF LD. AO. AGGRIEVED THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. THE LD. COUNSEL OF ASSESSEE [AR] ASSAILED THE PE NALTY BY MAKING MULTIPLE SUBMISSIONS AND STRESSED THE POINT THAT TH ERE WAS REASONABLE CAUSE FOR NON-COMPLIANCE WITHIN THE MEANING OF SECT ION 273B AND HENCE THE PENALTY WAS NOT JUSTIFIED. PER CONTRA LD. DR POINTED OUT THAT THE ORIGINAL QUANTUM ASSESSMENT ORDER WAS SET ASIDE UPON ASSESSEES APPLICATION U/S 264 BY LD. CIT WHERE THE ASSESSEE BY SWORN AFFIDAVIT ITA NOS.4496 TO 4498/DEL/2015 OMSHIV BUILDTECH PVT. LTD. ASSESSMENT YEARS-2006-07 TO 2008-09 4 PROMISED TO COOPERATE IN THE SET ASIDE PROCEEDINGS AND DESPITE THAT THE ASSESSEE MADE NO SERIOUS ATTEMPT TO ATTEND TO PROCE EDINGS WHICH LED TO REFRAMING OF ASSESSMENT AGAIN U/S 144. THE LD. DR A LSO POINTED OUT THAT THE ASSESSEE WAS ACTIVELY PERUSING MULTIPLE PROCEED INGS BEFORE VARIOUS AUTHORITIES AND DEBARRED FROM TAKING THE STAND THAT THE KEY PERSON WAS NOT AVAILABLE TO MAKE THE DUE SUBMISSIONS AND COMPL Y WITH THE TERMS OF THE NOTICES. 4. WE HAVE CAREFULLY HEARD THE RIVAL CONTENTIONS AN D PERUSED RELEVANT MATERIAL ON RECORD. AT THE OUTSET IT IS NOTED THAT THE ASSESSEE DURING HEARING CONTESTED THE PENALTY PROCEEDINGS ON LEGAL GROUND BY DRAWING OUR ATTENTION TO THE SHOW-CAUSE NOTICE ISSUED U/S 2 74 READ WITH SECTION 271 AND THE PENALTY ORDER ON THE PREMISES THAT THE PENA LTY ORDER STOOD VITIATED FOR WANT OF NATURAL JUSTICE. SINCE THE SAM E GOES TO THE ROOT OF THE MATTER WE TAKE UP THE SAME FIRST. A PERUSAL OF NOT ICE ISSUED U/S 274 READ WITH SECTION 271 AS PLACED ON PAGE NUMBER-113 OF THE PAPER BOOK REVEALS THAT THE SAME IS IN STANDARD PRINTED FORM W ITHOUT SPECIFYING THE EXACT CHARGE FOR WHICH THE PENALTY WAS BEING INITIA TED SINCE TWO CLAUSES HAVE BEEN TICKED-OFF SIMULTANEOUSLY . FURTHER THE NOTICE DID NOT SPECIFY THE EXACT DATES OF DEFAULT BEING COMMITTED BY THE A SSESSEE. THE SAME IN OUR OPINION SNATCHES A VALUABLE RIGHT OF THE AS SESSEE TO CONTEST THE SAME SINCE IT IS SETTLED LEGAL PROPOSITION THAT THE SHOW-CAUSE NOTICE MUST BE SPECIFIC CRYSTAL CLEAR AND WITHOUT ANY AMB IGUITY. THE VAGUENESS IN THE SAME IS FATAL TO THE CONSEQUENTIAL PROCEEDIN GS AS PER SETTLED LEGAL POSITION. ITA NOS.4496 TO 4498/DEL/2015 OMSHIV BUILDTECH PVT. LTD. ASSESSMENT YEARS-2006-07 TO 2008-09 5 5. FURTHER WE FIND THAT IT IS NOT A CASE THAT THE ASSESSEE DID NOT ATTEND THE PROCEEDINGS AT ALL SINCE A PERUSAL OF TH E QUANTUM ASSESSMENT ORDER ITSELF REVEALS THAT THE ASSESSEE WHILE DRAWIN G ATTENTION OF LD. AO TOWARDS ONGOING COURT PROCEEDINGS BEING FACED BY DI RECTOR / GROUP AND FAMILY MEMBERS MADE CERTAIN COMPLIANCES BY FLING T HE REPLY IN DAK . 6. THE LD. AR HAS ALSO DRAWN OUR ATTENTION TO THE F AVORABLE ORDER OF TRIBUNALS PASSED IN GROUP CONCERNS ON SIMILAR FACTS FINDING MERITS IN THE SAME. THE COPIES OF THE SAME HAVE BEEN PLACED ON RE CORD. THE PERUSAL OF THE SAME LENDS STRENGTH TO THE ARGUMENT OF LD. A R. 7. TO CONCLUDE WE FIND THAT OVERALL CIRCUMSTANCES DO NOT JUSTIFY THE IMPOSITION OF PENALTY AND MORE PARTICULARLY IN VIEW OF THE FACT THAT PENALTY PROCEEDINGS SUFFERED LEGAL INFIRMITIES. HENCE BY D ELETING THE SAME WE ALLOW THE ASSESSEES APPEAL. 8. WE FIND IDENTICAL FACTS IN AY 2007-08 & 2008-09 WHERE THE ASSESSEE HAS BEEN SADDLED WITH SIMILAR PENALTIES. HENCE THERE BEING NO CHANGE IN MATERIAL FACTS OR CIRCUMSTANCES TAKIN G THE SAME STAND WE DELETE THE SAME. 9. RESULTANTLY ALL THE APPEALS FILED BY THE ASSESS EE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH NOVEMBER 2017. SD/- SD/- (D. MANMOHAN) (MANOJ KUMAR AGGA RWAL) / VICE PRESIDENT )* )* )* )* / ACCOUNTANT MEMBER /NEW DELHI; DATED : 17.11.2017 SR.PS:- SUJEET ITA NOS.4496 TO 4498/DEL/2015 OMSHIV BUILDTECH PVT. LTD. ASSESSMENT YEARS-2006-07 TO 2008-09 6 3 33 3 147 147 147 147 &7 4 &7 4 &7 4 &7 4 / COPY OF THE ORDER FORWARDED TO : 1. .0 / THE APPELLANT 2. 12.0 / THE RESPONDENT 3. 8 ( ) / THE CIT(A) 4. 8 / CIT CONCERNED 5. 79: 14 / DR ITAT NEW DELHI 6. :+ / GUARD FILE //TRUE COPY// ) ) ) ) / BY ORDER ) ) ) ) (ASSTT. REGISTRAR) / ITAT NEW DELHI