Chand Seth New Delhi v. Acit Central Circle 26 New Delhi

In The Income Tax Appellate Tribunal Delhi Bench Smc New Delhi Before Smt Diva Singh Judicial Member Ita No 4987 Del 2017 Ita 4988 D 2017 Ita 4989 D 2017 Assessment Years 2009 10 2010 11 2011 12 Ita No 4990 Del 2017 Ita 4991 D 17 Ita 4992 D 17 And Ita 4993 Del 2017 Assessment Years 2012 13 2013 14 2014 15 2015 16 Smt Chand Seth C 1 203 1 St Floor Janakpuri New Delhi 110058 Vs Asstt Commissioner Of Income Tax Central Circle 26 New Delhi Appellant Respondent Appellant By Shri Vijay Khatana Adv Proxy Counsel Respondent By Shri N J Singh Sr Dr Date Of Hearing 06 12 2017 Date Of Pronouncement 08 12 2017 Order Per Diva Singh J M These Seven Appeals Filed By The Assessee Are Bein G Decided By A Common Order As The Sole Issue Raised In Each Of Th Ese Appeals Is The Correctness Of The Consolidated Order Dated 26 05 2 017 Of The Ld Cit A 29 New Delhi In The Respective Assessment Years Where In The Penalty Imposed U S 271 1 B By The Assessing Officer Has Been Uph Eld In Appeal 2 On The Date Of Hearing An Adjournment Applicati On Was Placed On Behalf Of The Counsel Seeking Time To Consolidate T He Appeals With Other Connected Appeals The Record Shows That Request F Or Time Was Made On 4 Th December 2017 On Which Date Time Was Granted C Onsidering The Ita No 4987 To 4989 D 2017 Ita 4990 To 4993 D 17 Ays 2009 10 To 11 12 2012 13 To 2015 16 2 Submissions Of The Ld Sr Dr Mr N J Singh And Ta King Note Of The Fact That The Appeals Could Be Decided On The Basis Of Materi Al Available On Record The Request For Time Was Rejected Presence Of Mr Vijay Khatana As Proxy Counsel For The Ld Ar Was Taken On Record 3 The Record Shows That Penalty U S 271 1 B Wa S Imposed Upon The Assessee In The Respective Years In View Of The Fac T That On The Following Specific Dates As Set Out In The Penalty Orders Th E Assessee Either Sought Adjournment Or Remained Unrepresented 3 1 A Perusal Of The Penalty Order Shows That A Search And Seizure Operation U S 132 Of The It Act 1961 Was Carried Ou T In The Case Of M S G D Foods Manufacturing Pvt Ltd Others And The C Ase Of The Assessee Was Also Covered In The Said Search The Assessee Was Consequently Required To File Return In Response To Notice U S 153 A Therea Fter Notice U S 143 2 142 1 Along With Questionnaire As Per Recor D Was Issued To The Assessee On 13 5 2016 Fixing The Date Of Hearing As 22 Nd June 2016 On The Said Date Adjournment Application Was Filed As A Result Of Further Notices Issued On Specific Dates Which Have Been Elaborated In The Chart Above Penalty U S 271 1 B Was Imposed Upon The Assessee Sl No Notice Issued U S Date Of Issue Date Of Hearing Remarks 1 142 1 23 08 2016 01 09 2016 Adjournment Application Filed 2 142 1 14 10 2016 25 10 2016 No One Appeared 3 142 1 17 10 2016 27 10 2016 No One Appeared 4 142 1 03 11 2016 10 11 2016 On 11 11 2016 Part Submission Filed 5 271 1 B 11 11 2016 16 11 2016 No One Appeared Ita No 4987 To 4989 D 2017 Ita 4990 To 4993 D 17 Ays 2009 10 To 11 12 2012 13 To 2015 16 3 4 The Assessee In The Appellate Proceedings Befor E The Cit A Filed Its Detailed Submissions Vide Letter Dated 24 5 2017 Wh Ich Have Been Extracted In Para 5 From Pages 2 To 7 Of The Impugned Order These Were Further Supplemented By Submissions Contained In Letter Da Ted 25 5 2017 And Also Supported By An Affidavit Of The Ar Mr Ajai Kumar Affirming The Facts However Not Convinced With The Explanation The Pe Nalty Orders Were Upheld Leading To The Filing Of The Present Appeal S 5 A Perusal Of The Explanation Extracted In The Impugned Order Shows That The Assessee Submitted That Admittedly As Per Record On Two Occasions Adjournment Applications Were Filed And On One Of T Hese Dates Part Submissions Were Also Filed Accordingly On These Two Dates Assessee Cannot Be Said To Be Not Represented On The Remai Ning Dates It Had Been Argued The Assessing Officer Remained Focussed On Concluding The Issues In M S G D Foods Manufacturing India P Ltd As The A Ssessing Officer Was Of The View That The Issues Which Would Be Thrown Up F Rom The Said Case Would Have An Impact On The Case Of The Assessee Also An Affidavit Of Mr Ajai Kumar Was Relied Upon Mr Ajai Kumar Affirmed Tha T As Assessees Counsel He Remained Present On That Date And He Affirmed T Hat He Had Been Entrusted With The Job Of Assisting The Assessment Proceedings In The Case Of M S G D Foods Manufacturing India P Ltd Includin G The Case Of The Assessee And He Was Present On Each Of These Dates In These Peculiar Facts And Circumstances I Am Of The View That As Far As The Penalty Imposed U S 271 1 B Is Concerned The Default Stands Explaine D In The Facts Of The Present Case It Is Seen That Once On A Specific Da Te An Adjournment Ita No 4987 To 4989 D 2017 Ita 4990 To 4993 D 17 Ays 2009 10 To 11 12 2012 13 To 2015 16 4 Application Is Moved It Can By No Stretch Of Imag Ination Be Said To Be A Case Of Non Compliance Similarly Where Part Info Rmation Is Placed On Record And Time Is Sought It Again Cannot Be Said To Be A Case Of Absenting Oneself Without An Explanation On The Remaining D Ates The Assessee Has Consistently Argued That His Counsel Remained Prese Nt However The Focus Of The Assessing Officer Remained Upon The Main App Eals In The Case Of M S G D Foods Group In Which Background It Has Been S Tated That The Occasion For The Assessee To Remain Not Present Through His Counsel Did Not Arise I Find That The Commissioner Of Income Tax A Though Has Taken Note Of These Arguments Facts Submissions And Affidavit Howeve R Has Refused To Accept The Explanation In The Absence Of Any Justifiable Reason For Rejection Of Assessees Explanation The Order Cannot Be Upheld Considering The Submissions Of The Ld Sr Dr And The Submissions O F The Assessee As Recorded In The Impugned Order I Find That In The Absence Of Any Good Reason To The Contrary The Penalty Order In The Pe Culiar Facts And Circumstances Of The Case Deserves To Be Quashed Ordered Accordingly Said Order Was Pronounced In The Open Court At The Time Of Hearing Itself 6 In The Result The Appeals Of The Assessee Are Allowed Said Order Was Pronounced In The Open Court O N The Date Of Hearing Itself On 08 December 2017 Sd Diva Singh Judicial Member Dated 08 December 2017 Gs Ita No 4987 To 4989 D 2017 Ita 4990 To 4993 D 17 Ays 2009 10 To 11 12 2012 13 To 2015 16 5 Copy Forwarded To 1 Appellant 2 Respondent 3 Cit 4 Cit A 5 Dr Itat By Order Assistant Regi Strar Draft Dictated On 06 12 2017 Draft Placed Before Author 06 12 2017 Draft Proposed Placed Before The Second Member Draft Discussed Approved By Second Member Approved Draft Comes To The Sr Ps Ps Kept For Pronouncement On 08 12 2017 File Sent To The Bench Clerk 08 12 2017 Date On Which File Goes To The Ar Date On Which File Goes To The Head Clerk Date Of Dispatch Of Order