CHAMPSHI POPATLAL SHAH, MUMBAI v. ITO WARD 18(2) (3), MUMBAI

ITA 5112/MUM/2013 | 2009-2010
Pronouncement Date: 05-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 511219914 RSA 2013
Assessee PAN AANPS7444P
Bench Mumbai
Appeal Number ITA 5112/MUM/2013
Duration Of Justice 1 year(s) 3 month(s) 25 day(s)
Appellant CHAMPSHI POPATLAL SHAH, MUMBAI
Respondent ITO WARD 18(2) (3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 05-11-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 11-11-2014
Assessment Year 2009-2010
Appeal Filed On 10-07-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH MUM BAI BEFORE SHRI SANJAY ARORA AM AND SHRI AMIT SHUKLA JM ./ I.T.A. NO. 5112/MUM/2013 ( / ASSESSMENT YEAR: 2009-10) CHAMPSHI POPATLAL SHAH A-115 MADHAV NAGAR BHAWANI SHANKAR ROAD DADAR (W) MUMBAI-400 028 / VS. I.T.O. WARD 18(2)(3) PIRAMAL CHAMBERS MUMBAI ! ./' ./PAN/GIR NO. AANPS 7444 P ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) !# & ' / APPELLANT BY : SHRI DEVENDRA JAIN $%!# & ' / RESPONDENT BY : SHRI NEIL PHILIP () * & + / DATE OF HEARING : 05.11.2014 -. & + / DATE OF PRONOUNCEMENT : 11.11.2014 / O R D E R PER SANJAY ARORA A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-29 MUMBAI (CIT(A) FOR SH ORT) DATED 17.04.2013 CONFIRMING THE LEVY OF PENALTY U/S.271(1)(B) OF THE INCOME TAX ACT 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (A.Y.) 2009-10 VIDE ORDER DATED 01.11.02011. 2. THE INSTANT APPEAL FILED ON 10.07.2013 IS TIME BARRED BY 14 DAYS. THE ASSESSEE SUBSEQUENT TO THE DEFECT MEMO BEING ISSUED BY THE R EGISTRY FILED AN AFFIDAVIT DATED 17.07.2013 EXPLAINING SEVERE ILLNESS AS THE REASON FOR THE DELAY. UNDER THE CIRCUMSTANCES WE ARE SATISFIED AS TO THE EXISTENCE OF A SUFFICIENT CAUSE FOR THE SAID DELAY AND CONDONE THE SAME. THE HEARING IN THE MATTER WAS ACCORDINGLY PROCEEDED WITH. 2 ITA NO.5112/MUM/2013 (A.Y. 2009-10) CHAMPSHI POPATLAL SHAH VS. ITO 3. THE ONLY ISSUE ARISING IN THE INSTANT APPEAL IS THE MAINTAINABILITY IN LAW OF THE PENALTY U/S. 271(1)(B) OF THE ACT SUSTAINED BY THE FIRST APPELLATE AUTHORITY AT RS.40 000/- I.E. AS LEVIED BY THE ASSESSING AUTHORITY. THE IMP UGNED PENALTY IS IN RESPECT OF FOUR NOTICES U/S. 142(1) OF THE ACT. THE ASSESSEE FAILIN G TO EXPLAIN THE SAID DEFAULT IN THE PENALTY PROCEEDINGS INITIATED BY THE ISSUE OF NOTI CE U/S.274 ON 14.09.2011 THE SAME STOOD LEVIED AS PROPOSED I.E. AT RS.10 000/- FOR EACH DEFAULT AS PRESCRIBED BY LAW. IN APPEAL THE LD. CIT(A) ON AN EXAMINATION OF THE AS SESSEES EXPLANATION FOUND THE SAME TO BE GENERAL IN NATURE AND FURTHER WITHOUT ANY S UBSTANCE. THE PENALTY WAS ACCORDINGLY CONFIRMED. AGGRIEVED THE ASSESSEE IS IN SECOND APP EAL. 4. BEFORE US THE LD. AUTHORIZED REPRESENTATIVE (AR ) THE ASSESSEES COUNSEL WOULD FURNISHING A COPY OF THE AFFIDAVIT DATED 04.11.2014 STATED TO BEAR THE SAME REASONS EXPLAINING THE DEFAULT/S AS FURNISHED BEFORE THE AU THORITIES BELOW CONTEND THAT THERE HAD BEEN SUBSTANTIAL COMPLIANCE IN-AS-MUCH AS ALL THE I NFORMATION AS CALLED FOR HAD BEEN SUBMITTED ALBEIT SUBSEQUENTLY WITH IN FACT THE AS SESSMENT BEING FRAMED AT THE RETURNED INCOME ALSO PLACING A COPY OF THE ASSESSMENT ORDER OF THE ASSESSMENT U/S.143(3) DATED 26.12.2011 ON RECORD. THE LD. DEPARTMENTAL REPRESEN TATIVE (DR) ON THE OTHER HAND WOULD RELYING ON THE ORDERS BY THE REVENUE AUTHORI TIES VEHEMENTLY OPPOSE THE SAME STATING THAT NO CASE FOR INTERFERENCE IS MADE OUT; THE ASSESSEES EXPLANATION BEING FRIVOLOUS AND IN ANY CASE UNSUBSTANTIATED. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE MATER IAL ON RECORD. THE AFFIDAVIT DATED 04.11.2014 BY THE ASSESSEE AS FILED WAS NEITHER C ALLED FOR BY THE COURT NOR IS WARRANTED IN THE FACTS OF THE CASE IN-AS-MUCH AS IT IS THE RE ASONS OR THE EXPLANATION I.E. AS TO A REASONABLE CAUSE WHICH IS TO BE RATHER PROVED AS FURNISHED IN THE PENALTY PROCEEDINGS THAT IS RELEVANT OR MATERIAL. THE SAME ACCORDINGLY IS OF LITTLE CONSEQUENCE EVEN AS WE OBSERVE IT TO BE A REITERATION OF THE REASONS AS AD VANCED BEFORE THE AUTHORITIES BELOW. IN OUR VIEW THE ASSESSEES EXPLANATION IS NEITHER CON VINCING NOR SUBSTANTIATED. HAVING APPOINTED/AUTHORIZED A COUNSEL NAMELY SHRI MANOJ BHANUSHALI ITP UPON RECEIPT OF THE NOTICE U/S. 143(2) DATED 27.09.2010 IT WAS THE SAI D COUNSEL WHO WAS REQUIRED TO ATTEND 3 ITA NO.5112/MUM/2013 (A.Y. 2009-10) CHAMPSHI POPATLAL SHAH VS. ITO THE ASSESSMENT PROCEEDINGS FROM TIME TO TIME FURNI SHING THE RELEVANT DETAILS AND IT IS HE WHO COULD WHERE SO WARRANTED BY THE EXIGENCIES OF THE SITUATION SEEK TIME FOR THE SAME OR FOR OTHER PRESSING REASONS. ACCORDINGLY THE ASS ESSEE STATING OF HAVING VISITED HIS NATIVE PLACE OR BEING UNWELL DO NOT COUNT FOR MUCH; HE HIMSELF STATING THE COUNSELS PREOCCUPATION AS THE REASON FOR THE NON-ATTENDANCE ON ONE OF THE DATES OF HEARING. AT THE SAME TIME THEREFORE IT IS THE ASSESSEES C OUNSEL RATHER THAN THE ASSESSEE RUNNING A PROPRIETARY FIRM OF RETAIL OF SAREES DRE SS MATERIAL ETC. AND WHO IS APPARENTLY NOT CONVERSANT WITH THE PROCEEDINGS UNDER THE ACT A ND BESIDES AS WE GATHER A SEVERE DIABETIC PATIENT WHO IS RESPONSIBLE FOR THE SAME. PENALTY AS EXPLAINED BY THE APEX COURT IN HINDUSTAN STEEL LTD. V. STATE OF ORISSA [1972] 83 TR 26 (SC) MAY NOT ORDINARILY BE LEVIED EVEN WHERE IT MAY BE OTHERWISE LAWFUL TO DO SO I.E. WHERE THE ASSESSEES CONDUCT IS NOT CONTUMACIOUS OR IS IN CONSCIOUS DISREGARD OF HIS STATUTORY OBLIGATIONS. WE ACCORDINGLY ONLY CONSIDER IT PROPER TO CONFIRM THE PENALTY FOR ONLY ONE DEFAULT I.E. IN RESPECT OF THE FOURTH NOTICE U/S. 142(1) (DATED 14.09.2011) FOR WHICH THE ASSESSEE HAS ADMITTEDLY NOT FURNISHED ANY EXPLANATI ON. TRUE VIDE THE SAID NOTICE THE ASSESSEE WAS ALLOWED TIME OF ONLY THREE DAYS AND W HICH MAY NOT BE SUFFICIENT. HOWEVER THE SAID NOTICE WAS FIRSTLY A REMINDER NOTICE AND TWO AS STATED BY THE LD. CIT(A) AND ALSO OBSERVED BY US COULD BE RESPONDED TO BY SEEKI NG FURTHER TIME. WE DECIDE ACCORDINGLY AND THE ASSESSEE GETS PART RELIEF I.E . QUA THE PENALTY LEVIED FOR THE DEFAULT OF NON-COMPLIANCE FOR THE OTHER THREE NOTICES U/S. 142 (1). WE DECIDE ACCORDINGLY. 6. IN THE RESULT THE ASSESSEES APPEAL IS PARTLY A LLOWED. /. 0 (1 2/ & ) 3 & 45 ORDER PRONOUNCED IN THE OPEN COURT ON NOVEMBER 05 2014 SD/- SD/- (AMIT SHUKLA) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER 6* MUMBAI; 7( DATED : 11.11.2014 4 ITA NO.5112/MUM/2013 (A.Y. 2009-10) CHAMPSHI POPATLAL SHAH VS. ITO ).(../ ROSHANI SR. PS !' # $%&' (!'% / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT CONCERNED 5. :); < $(=1 + =1. 6* / DR ITAT MUMBAI 6. < ?2 @ * / GUARD FILE !' / BY ORDER )/* + (DY./ASSTT. REGISTRAR) 6* / ITAT MUMBAI