Shri Manoj Mantri,, Indore v. The I.T.O., Indore

1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER 1. ITA NO. 541/IND/2009 A.YS. 2008-09 2. ITA NO. 542/IND/2009 A.YS. 2008-09 1. SHRI MANOJ MANTRI INDORE PAN AJEPM-0428K 2. SMT. SUNITA MANTRI INDORE PAN AJEPM-0426H APPELLANT VS ADDL. COMMR. OF INCOME TAX RANGE-3 INDORE RESPONDENT APPELLANT BY : SHRI SANJAY SODANI RESPONDENT BY : SMT. APARNA KARAN SR. DR O R D E R THESE APPEALS ARE BY THE ASSESSEES AGAINST THE COMM ON ORDER OF THE LEARNED CIT(A) DATED 26.8.2009 CONFIRMING THE L EVY OF PENALTY OF RS.20 000/- (RS. 10 000/- IN EACH CASE) IMPOSED U/S 272A(1)(C) OF THE ACT. DURING HEARING OF THESE APPEALS I HAVE HEARD SHRI SANJAY SODANI LD. COUNSEL FOR THE ASSESSEE AND SMT. APARNA KARAN SR. DR. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT NO D EFAULT WAS EVER COMMITTED BY THE ASSESSEE AS THE NOTICES ISSUED TO THE ASSESSEES WERE 2 COMPLIED WITH AS ON TWO OCCASIONS I.E. 29.2.2008 AN D 6.3.2008 THE ASSESSEES ON 29.2.2008 SOUGHT ADJOURNMENT AND 6.3.2 008 WAS DECLARED GAZETTE HOLIDAY. ALL THESE FACTS WERE IGN ORED BY THE ASSESSING OFFICER THEREFORE THE IMPOSITION OF PENALTY WAS C HALLENGED. ON THE OTHER HAND THE LEARNED SR. DR MRS. APARNA KARAN DEFENDED THE IMPOSITION OF PENALTY BY CONTENDING THAT THE ASSESS EES DELIBERATELY AVOIDED APPEARANCE BEFORE THE ASSESSING OFFICER. 2. I HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. R EPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RE CORD. BRIEF FACTS ARE THAT A SURVEY TEAM VISITED THE PREMISES OF THE ASSE SSEES ON 20.2.2008 AND ISSUED SUMMONS FOR ATTENDING THE HEARING ON 22. 2.2008. HOWEVER THE ASSESSEES APPROACHED THE LEARNED ITO AND SOUGHT ADJOURNMENT. THE ASSESSEE ASKED THE ASSESSING OFFICER TO PROVIDE RECORDS ON 26.2.2008 AND IT WAS FOUND THAT THE ASSESSING OFFIC ER WAS NOT IN HIS SEAT AND WAS TOLD THAT HE HAS GONE ON SOME OFFICIAL WORK CONSEQUENTLY THE ASSESSEE SOUGHT ADJOURNMENT. ON 26.2.2008 THE ASSE SSING OFFICER ISSUED SUMMONS U/S 131 FOR ATTENDING THE PROCEEDING S FOR 29.2.2008. AS PER THE ASSESSEES ROUND ABOUT AT 3.00 PM THE AS SESSEE WENT TO THE OFFICE OF THE ASSESSING OFFICER BUT IT WAS ALLEGED THAT THE ITO DID NOT CALL HIM TILL 5.30 P.M. CONSEQUENTLY THE ASSESSEES SUB MITTED A LETTER TO THE DEPARTMENT SHOWING THAT THE ASSESSEES WERE VERY MUC H PRESENT IN THE INCOMETAX OFFICE. ANOTHER LETTER/NOTICE WAS SENT T O THE ASSESSEE WHICH 3 WAS DULY RECEIVED FOR 6.3.2008. AS PER THE ASSESSEE IT WAS DECLARED A GAZETTED HOLIDAY. THE CLAIM OF THE ASSESSEE IS THAT THE ASSESSEE WAS VERY MUCH VIGILANT IN COMPLYING WITH THE NOTICES H OWEVER DUE TO THE AFORESAID REASONS THEY COULD NOT APPROACH THE ASSE SSING OFFICER. HOWEVER THE AMOUNT OF RS.10 000/- (IN EACH CASE) W AS IMPOSED AS PENALTY FOR FAILURE TO ATTEND THE OFFICE OF THE ITO . 2. IF THE AFORESAID FACTS ARE ANALYSED THERE IS A FORCE IN THE CONTENTION OF THE ASSESSEE AS IS EVIDENT FROM PAPER BOOK PAGES 2 AND 3 (DULY RECEIVED BY THE DEPARTMENT). ALL THESE FACTS HAVE BEEN DULY NARRATED IN THESE LETTERS. BROADLY I AM OF THE VIE W THAT UNDER THE AFOREMENTIONED FACTS AND KEEPING IN VIEW THE PRINCI PLES OF NATURAL JUSTICE ONE MORE OPPORTUNITY SHOULD BE PROVIDED TO THE ASSESSEES. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE LEARNED I TO ON A MUTUALLY AGREED DATE. THE LEARNED ITO IS ALSO DIRECTED TO P ROVIDE SUFFICIENT OPPORTUNITY TO THE ASSESSEES TO SUBSTANTIATE THEIR CLAIM. CONSEQUENTLY BOTH THESE APPEALS OF THE ASSESSEES ARE ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN OPEN COURT ON 6 TH APRIL 2010. SD (JOGINDER SINGH) JUDICIAL MEMBER APRIL 6 2010 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE *DBN/ 4