Fashion Design Council of India, New Delhi v. ADIT (E), New Delhi

ITA 48/DEL/2010 | 2005-2006
Pronouncement Date: 23-04-2010 | Result: Allowed

Appeal Details

RSA Number 4820114 RSA 2010
Bench Delhi
Appeal Number ITA 48/DEL/2010
Duration Of Justice 3 month(s) 17 day(s)
Appellant Fashion Design Council of India, New Delhi
Respondent ADIT (E), New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 23-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 23-04-2010
Date Of Final Hearing 22-04-2010
Next Hearing Date 22-04-2010
Assessment Year 2005-2006
Appeal Filed On 05-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B : NEW DELHI BEFORE SHRI G.E.VEERABHADRAPPA VP AND SHRI H.S.SIDHU JM ITA NO.48/DEL/2010 ASSESSMENT YEAR : 2005-06 FASHION DESIGN COUNCIL OF INDIA C/O RAHUL KAPOOR & ASSOCIATES C.AS E-186 GREATER KAILASH I NEW DELHI VS. ASSTT. DIRECTOR OF INCOME TAX (E) TRUST CIRCLE-II AAYAKAR BHAWAN DISTRICT CENTRE LAXMI NAGAR NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. LALITA KRISHNAMURTHY C.A. RESPONDENT BY : MRS. MAMTA KOCHAR D.R. ORDER PER H.S.SIDHU JM : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(A)-XXI NEW DELHI DATED 26.10.2009 FOR AY 2005-06. 2. THE ONLY EFFECTIVE GROUND RAISED IN THE APPEAL R EADS AS UNDER:- THAT THE LD. CIT(A) HAD ERRED IN SUSTAINING THE PE NALTY OF RS.30 000 UNDER SECTION 271(1)(B) OF INCOME-TAX ACT 1961 MORE PARTICULARLY WHEN ALL INFORMATION AS REQUIRED BY THE ASSESSING OFFICER WAS FILED BEFORE COMPLETION OF A SSESSMENT PROCEEDINGS AND THERE WAS NO MALAFIDE INTENTION ON THE PART OF THE APPELLANT IN THE NON APPEARANCE OF THE COUNS EL. 3. ASSESSEE IS A SOCIETY REGISTERED UNDER THE SOCIE TY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT. IT WAS ALSO REGISTERED U/S 12A(A) OF THE INCOME-TAX ACT VIDE REGISTRATION DATED 24.6.2002. THE MAIN ACTIVIT Y OF THE ASSESSEE IS TO PROMOTE ITA NO.48/DEL/2010 2 THE FASHION BUSINESS IN INDIA AND TO ORGANIZE FASHI ON SHOWS. THE ACTIVITIES OF THE ASSESSEE ARE CHARITABLE WITHIN THE MEANING OF SECTI ON 2(15) OF THE INCOME-TAX ACT AS SUCH EXEMPTION U/S 11 OF THE ACT IS ALLOWED TO THE ASSESSEE. THE ASSESSEE FILED ITS RETURN OF INCOME ON 6.10.2005 DECLARING NIL I NCOME WHICH WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT ON 24 .3.2006 AND LATE R ON THE CASE WAS SELECTED FOR SCRUTINY BY ISSUANCE OF NOTICE U/S 143(2). IN RESP ONSE TO THE SAME AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SHRI PREM NATH APPEA RED FROM TIME TO TIME AND FILED ALL THE NECESSARY DOCUMENTARY EVIDENCE AS REQUIRED BY THE ASSESSING OFFICER. ACCORDING TO THE PENALTY ORDER THE ASSESSEE FAILED TO COMPLY WITH THE PROCEEDINGS U/S 142(1)/143(2) OF THE INCOME-TAX ACT ON THE FOLL OWING DATES:- DATE OF HEARING DETAILS OF NON-COMPLIANCE 28.3.2007 SHRI PREM NATH A.R. APPEARED ON 23.3.2007 AND THE CASE WAS ADJOURNED TO 28.3.2007 AND ON THIS DATE NONE APPEARED. 18.7.2007 SHRI PREM NATH A.R. APPEARED ON 9.7.2007 AND THE3 CASE WAS ADJOURNED TO 18.7.2007 AND ON THIS DATE NONE APPEARED. 21.8.2007 NOTICES U/S 143(2) AND 142(1) DATED 10.8.2007 WERE ISSUED FOR DATE OF HEARING ON 21.8.2007 AND ON THIS DATE NONE APPEARED. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON 3 0.11.2007 U/S 143(3) OF THE INCOME TAX ACT AT AN INCOME OF RS.1 LAKH AND ALSO I NITIATED PENALTY PROCEEDINGS U/S 271(1)(B) BY ISSUING SHOW CAUSE NOTICE ON 30.1. 2007 FIXING THE CASE FOR 31.12.2007 FOR NON-COMPLIANCE OF NOTICES U/S 142(1) /143(2) OF THE ACT. THE CASE ITA NO.48/DEL/2010 3 WAS AGAIN FIXED FOR 15.1.2008. IN RESPONSE TO THE SAME THE ASSESSEE FURNISHED ITS SUBMISSION AS UNDER:- IN REFERENCE TO YOUR GOOD SELF NOTICE NO.ADIT(E)/T C-II/2007-08/1263 DATED 7.1.2008 REGARDING THE ABOVE MENTIONED SUBJEC T FOR THE ASSESSMENT YEAR 2005-06 WE HUMBLY REQUEST YOU TO KINDLY DROP THE PENALTY PROCEEDINGS U/S 271(1)(B) AS THE NON APPEARANCE AGA INST THE CONCERNED NOTICE WAS PURELY DUE TO NOT BEING ABLE TO RECEIVE THE NOTICE ON TIME. AS YOU KNOW THE ASSESSEE IS VERY REGULAR IN APPEARI NG FOR ASSESSMENT PROCEEDING AND EVEN IN THE PAST IT HAS NEVER BEEN P ENALIZED FOR ANY SUCH REASONS AS THE CASE COME UNDER SCRUTINY PAST MANY Y EARS AND YOU MAY CHECK FROM YOUR RECORDS THAT ALL ARE ASSESSMENT HAV E BEEN CONCLUDED VERY SMOOTHLY AND WITHOUT ANY SUCH PENALTY. FURTHER DUR ING THE COURSE OF ASSESSMENT PROCEEDING FOR THE AFORESAID ASSESSMENT YEAR THE COUNSEL FOR THE ASSESSEE SUBMITTED A LETTER ON DATED 23.3.2007 IN WHICH IT IS CLEARLY MENTIONED THAT THE PRESENT ADDRESS OF THE ASSESSEE IS 4 TH FLOOR JMD REGENT PLAZA M.G. ROAD GURGAON AND REGISTERED OFFICE E-1 86 GREATER KAILASH PART-1 NEW DELHI-110048 WHILE THE OTHER ADDRESS E- 263 GREATER KAILASH PART-II NEW DELHI IS THE ADDRESS OF THE ASSESSEE A T THE TIME OF FILING OF INCOME TAX RETURN. WE REGRET THE INADVERTENT THE N ON APPEARANCE AND HUMBLY REQUEST TO YOU DROP THE PENALTY PROCEEDINGS. 4. AFTER GOING THROUGH THE AFORESAID SUBMISSION OF THE ASSESSEE THE ASSESSING OFFICER FOUND THAT NON-COMPLIANCE OF TWO DATES I.E. 28.3.2007 AND 18.7.2007 THE QUESTION OF ISSUE OF NOTICES DOES NOT ARISE AS THE CASE WAS ADJOURNED AND THE NEXT DATE WAS DULY NOTED BY AN AUTHORIZED REPRESENTATIV E OF THE ASSESSEE AND SO FAR AS NON- COMPLIANCE ON 21.8.2007 IS CONCERNED THE NOTI CES U/S 143(2) AND 142(1) WERE SENT AT THE ADDRESS OF THE REGISTERED OFFICE O F THE ASSESSEE AS MENTIONED IN THE ASSESSEES LETTER DATED 15.1.2008. THE ASSESSING OFFICER IS OF THE OPINION THAT PENALTY IS LEVIABLE IN RESPECT OF NON-COMPLIANCE OF ALL THE ABOVE MENTIONED THREE DATES AND HE IMPOSED THE PENALTY OF RS.30 000/- WHI CH IS WORKED OUT @ RS.10 000 ITA NO.48/DEL/2010 4 PER OCCASION FOR FAILURE OF COMPLIANCE AS DISCUSSED ABOVE VIDE ORDER DATED 6.5.2008. 5. AGGRIEVED BY THE SAME ASSESSEE FILED APPEAL BEF ORE THE LD. FIRST APPELLATE AUTHORITY WHO VIDE ORDER DATED 26.10.2009 DISMISSED THE APPEAL OF THE ASSESSEE CONFIRMING THE PENALTY. HENCE THE PRESENT APPEAL B EFORE US. 6. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSE SSEE STATED THAT NON- COMPLIANCE BY THE ASSESSEES COUNSEL BEFORE THE ASS ESSING OFFICER WAS PURELY DUE TO NOT BEING ABLE TO RECEIVE THE NOTICE ON TIME. S HE FURTHER STATED AUTHORIZED REPRESENTATIVE OF THE ASSESSEE APPEARED FROM TIME T O TIME AND FILED ALL NECESSARY EVIDENCE FOR SUBSTANTIATING THE CLAIM OF THE ASSESS EE. SHE ALSO ARGUED THAT ASSESSEE HAS BEEN REGULARLY FILING ITS RETURN OF IN COME FOR THE PAST MANY YEARS AND ALL THE ASSESSMENTS HAVE BEEN COMPLETED VERY SMOOTH LY WITHOUT ANY SUCH PENALTY. FINALLY SHE STATED THAT DUE TO MISTAKE OF THE COUN SEL ASSESSEE SHOULD NOT SUFFER AND REQUESTED THAT PENALTY IN DISPUTE MAY BE CANCEL LED. 7. ON THE CONTRARY LD. D.R. RELIED UPON THE ORDER PASSED BY THE LD. CIT(A). 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD AVAILABLE WITH US. THE LD. FIRST APPELLATE AUTHORITY HAS REPRODUCED TH E AFFIDAVIT OF SHRI PREM NATH AUTHORIZED REPRESENTATIVE OF THE ASSESSEE AT PAGE NO.3 IN WHICH THE COUNSEL FOR THE ASSESSEE STATED THAT HE COULD NOT APPEAR ON 28.3.20 07 BECAUSE HE WAS HAVING FEVER AND ON 28.7.2007 HE REQUIRED SOMETIME TO COLLECT CE RTAIN INFORMATION FROM THE ASSESSEE AND SENT HIS ASSISTANT SHRI S. KUMAR REQUE STING FOR ADJOURNMENT AND ON ITA NO.48/DEL/2010 5 21.8.2007 HE HAD TO APPEAR IN SEVERAL SCRUTINY ASSE SSMENTS IN CENTRAL REVENUE BUILDING ON THAT DAY. ON ACCOUNT OF HEAVY CONSTRUCT ION WORK DUE TO METRO WORK HE COULD NOT REACH THE ASSESSING OFFICER ON THAT DA Y ON TIME AND HE MET THE ASSESSING OFFICER ON NEXT DAY AND IN HIS AFFIDAVIT HE REGRETTED HIS INABILITY TO APPEAR ON THE PREVIOUS DAY AND REQUESTED THE ASSESS ING OFFICER TO DROP THE PENALTY PROCEEDINGS IN THE INTERESTS OF JUSTICE. AFTER GOI NG THROUGH THE AFORESAID AFFIDAVIT WE ARE OF THE CONSIDERED OPINION THAT NON-APPEARANC E BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE ON THE AFORESAID DAT ES IS NOT INTENTIONAL AND MALA- FIDE ON THE PART OF THE ASSESSEE AND WAS DUE TO UNAVOID ABLE CIRCUMSTANCES AND WAS DUE TO UNAVOIDABLE CIRCUMSTANCES LIKE HE WAS NOT FE ELING WELL ON THAT DATE AND DUE TO HEAVY OFFICE WORK IN THE INCOME TAX DEPARTMENT. EVEN OTHERWISE IF WE PRESUME THAT IT IS A MISTAKE OF ASSESSEES COUNSEL BUT FOR THE MISTAKE OF THE AUTHORIZED REPRESENTATIVE THE ASSESSEE SHOULD NOT SUFFER. AS PER RECORD ASSESSEE APPEARED REGULARLY BEFORE AND AFTER 28.3.2007 18.7.207 AND 21.8.2007 AND ASSISTED THE ASSESSING OFFICER IN COMPLIANCE OF THE ASSESSMENT B Y FILING VARIOUS DOCUMENTARY EVIDENCE AS REQUIRED BY THE ASSESSING OFFICER. 9. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES DISC USSED ABOVE WE ARE OF THE CONSIDERED OPINION THAT ASSESSEE HAS ESTABLISHED IT S BONAFIDES FOR NON-APPEARANCE BEFORE THE ASSESSING OFFICER ON THE THREE DATES MEN TIONED ABOVE. WE ACCORDINGLY HOLD THAT NO PENALTY IS LEVIABLE IN THE FACTS AND C IRCUMSTANCES OF THIS CASE. THE PENALTY IS ACCORDINGLY DELETED. THE ORDER PASSED BY THE LD. FIRST APPELLATE AUTHORITY ITA NO.48/DEL/2010 6 IN SUSTAINING THE IMPUGNED PENALTY LEVIED BY THE AS SESSING OFFICER U/S 271(1)(B) OF THE ACT IS QUASHED. 10. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD APRIL 2010. SD/- SD/- (G.E.VEERABHADRAPPA) (H.S.SIDHU) VICE PRESIDENT JUDICIAL MEMBER DATED : 23.04.2010. VSK COPY FORWARDED TO: - 1. APPELLANT-ASSESSEE 2. RESPONDENT-REVENUE 3. CIT 4. CIT(A) 5. DR ITAT DEPUTY REGISTRAR ITA NO.48/DEL/2010 7