M/s. Cheer Trading And Investment Pvt.Ltd.,, Ahmedabad v. The Income tax Officer,Ward-1(3),, Ahmedabad

ITA 834/AHD/2009 | 2004-2005
Pronouncement Date: 25-02-2011 | Result: Allowed

Appeal Details

RSA Number 83420514 RSA 2009
Assessee PAN AAACC7750Q
Bench Ahmedabad
Appeal Number ITA 834/AHD/2009
Duration Of Justice 1 year(s) 11 month(s) 9 day(s)
Appellant M/s. Cheer Trading And Investment Pvt.Ltd.,, Ahmedabad
Respondent The Income tax Officer,Ward-1(3),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 25-02-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 25-02-2011
Date Of Final Hearing 22-02-2011
Next Hearing Date 22-02-2011
Assessment Year 2004-2005
Appeal Filed On 16-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HON' BLE SHRI N.S.SAINI A.M. ) I.T.A. NO. 834/AHD./2009 ASSESSMENT YEAR : 2004-2005 M/S. CHEER TRADING AND INVESTMENT P. LTD. -VS - THE I.T.O. WARD-1(3) AHMEDABAD (PAN : AAACC 7750Q) (APPELLANT) (RESPONDENT) APPELLANT BY : NONE (WRITTEN SUBMISS ION) RESPONDENT BY : SHRI SAMIR TEKRIWAL SR .D.R O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 23.12.2008 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VI AH MEDABAD CONFIRMING THE PENALTY OF RS.50 000/- LEVIED BY THE ASSESSING OFFICER UNDER 2 71(1)(B) OF THE I.T. ACT 1961 FOR THE ASSESSMENT YEAR 2006-2007. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S A COMPANY. FOR THE ASSESSMENT YEAR UNDER APPEAL THE ASSESSEE FILED THE RETURN OF INCOME ON 21.10.2004 DECLARING TOTAL INCOME OF RS.9 13 530/-. THE ASSESSING OFFICER FRAMED THE ASS ESSMENT UNDER SECTION 144 ON 30.08.2006 AT A TOTAL INCOME OF RS.9 33 440/- WHEREIN HE DISALLOW ED RS.19 910/- OUT OF EXPENSES AND AUDIT FEES AMOUNTING TO RS.19 910/-. THE REASONING GIVEN BY TH E ASSESSING OFFICER FOR MAKING DISALLOWANCE IS THAT THE ASSESSEE HAS FAILED TO FUR NISH ANY DETAILS OF EVIDENCE WITH REGARD TO ITS CLAIM OF LEGAL AND PROFESSIONAL EXPENSES AND AUDIT FEES AMOUNTING TO RS.19 910/-. IN THIS ASSESSMENT ORDER THE ASSESSING OFFICER ALSO INITIA TED PENALTY PROCEEDING UNDER SECTION 271(1)(B). SUBSEQUENTLY VIDE ORDER DATED 18.12.200 6 THE ASSESSING OFFICER LEVIED THE PENALTY OF RS.50 000/- UNDER SECTION 271(1)(B) ON THE GROUN D THAT THE ASSESSEE MADE NO COMPLIANCE IN RESPECT OF FOLLOWING NOTICES. 2 ITA NO. 834-AHD-2009 SR.NO. NOTICE U/S. DATE OF NOTICE AMOUNT OF PENALTY 1 143(2) 27/07/2005 10000/- 2 143(2) 09/09/2005 10000/- 3 142(1) 16/05/2006 10000/- 4 SHOW CAUSE NOTICE 11/7/2006 10000/- 5 SHAW CAUSE NOTICE FOR 144 18/8/2006 10000/- 3. ON APPEAL AGAINST THE AFORESAID PENALTY ORDER I N THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) CONFIRMED THE SAID PENALTY. 4. AGGRIEVED WITH THE ORDER OF THE LEARNED COMMISSI ONER OF INCOME TAX(APPEALS) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. AT THE TIME OF HEARING BEFORE US NONE WAS PRESE NT ON BEHALF OF THE ASSESSEE. HOWEVER WRITTEN SUBMISSIONS WERE FILED WHEREIN IT WAS CONTE NDED THAT THE ADDITION OF RS.19 910/- MADE BY THE ASSESSING OFFICER HAS BEEN DELETED BY THE LE ARNED COMMISSIONER OF INCOME TAX(APPEALS)-X AHMEDABAD VIDE ORDER DATED 05.10.2 006. ON THE BASIS OF THIS REASONING IT WAS CONTENDED THAT SINCE THE FINAL ASSESSED INCOME IS T HE RETURNED INCOME ON THIS GROUND ALONE PENALTY LEVIED UNDER SECTION 271(1)(B) BE CANCELLED . EVEN ON MERIT THE ASSESSEE MADE THE FOLLOWING SUBMISSIONS: 3.1 THE HEARING ON 5 TH AUGUST. 2005 THE APPELLANT SUBMITS THAT IT HAD RECEIVED A NOTIC E DATED 27 TH JULY 2005 ISSUED U/S 143(3) OF THE INCOME TAX ACT 1961 WHEREUNDER THE HEARING WAS FIXED ON 5 TH AUGUST 2005. THE APPELLANT SUBMITS THAT THE HEARING WAS DULY ATTENDED. HOWEVER THE ASSESSING OFFICER HAD ADJOURNED THE HEARING SINE D IE AS IT WAS A NORMAL NOTICE. IT IS SUBMITTED THAT UNDER THE CIRCUMSTANCES THERE WAS NO DEFAULT ON THE PART OF THE APPELLANT COMPANY. THE PENALTY LEVIED WITH REFERENCE TO THE ALLEGED NON-COMPLIANCE ON 5 TH AUGUST 2005 IN RESPONSE TO NOTICE DATED 27 TH JULY 2005 IS BAD IN LAW. 3.2 THE HEARING ON 19 TH SEPTEMBER 2005 3.2 THE APPELLANT SUBMITS THAT (HEREAFTER THE HEAR ING WAS FIXED ON 19 TH SEPTEMBER 2005 BY THE ASSESSING OFFICER VIDE HIS NOTICE DATED 9 LH SEPTEMBER 2005. THE APPELLANT SUBMITS THAT ON 19 TH SEPTEMBER 2005 THE REPRESENTATIVE OF THE APPELLAN T COMPANY HAD ATTENDED 3 ITA NO. 834-AHD-2009 BEFORE THE ASSESSING OFFICER AND AGAIN (HE HEARING WAS ADJOURNED BY THE ASSESSING OFFICER AS THE ASSESSMENT WAS NOT GETTING TIME BARRED AND THE ASSESSING OFFICER HAD INFORMED THE REPRESENTATIVE OF THE APPELLANT THAT A NOTICE U/S 142(1) SHALL BE ISSUED AND DETAILS STATED THEREIN MAY BE PLACED ON THE RECORDS OF THE ASSESS ING OFFICER. THE APPELLANT SUBMITS THAT UNDER THE CIRCUMSTANCES THE HEARING FIXED ON 19 TH SEPTEMBER 2005 WAS DULY ATTENDED AND THE QUESTION OF ANY PENALTY DOES NOT ARISE. 3.3 HEARING FIXED ON 7 TH JUNE 2006 . 3.3 THE ASSESSING OFFICER HAD THEREAFTER FIXED TH E HEARING ON 7 TH JUNE 2006 VIDE NOTICE DATED 16 TH MAY 2006 ISSUED U/S 142(1) OF THE INCOME TAX ACT 1961. THE ASSESSING OFFICER WAS PRE-OCCUPIED WITH OTHER MATTERS AND THEREFORE THE ASSESSING OFFICER HAD REFIXED THE HEARING ON 12 TH JUNE 2006. THE REPRESENTATIVE OF THE APPELLANT HA D ATTENDED THE OFFICE OF THE ASSESSING OFFICER ALONGWITH LETTER DATED 29 LH MAY 2006 WHICH WAS NOT ACCEPTED BY THE ASSESSING OFFICER STATING THAT THE SAID LETTER BE PLACED ON THE RECORDS ON 12 TH JUNE 2006 WHICH WAS THE DATE OF THE NEXT HEARING. THE APPELL ANT SUBMITS THAT UNDER THE CIRCUMSTANCES THE HEARING FIXED ON 7 TH JUNE 2006 WAS DULY COMPLIED WITH AND PENALTY WITH REFERENCE TO THE SAID HEARING BE DELETED. THE APPELLANT FURTHER INVITE ATTENTION OF THE HON'BLE COMMISSIONER OF INCOME LAX (APPEALS) TO TH E NOTICE DATED 16' H MAY 2006 AND PARTICULARLY PARA (A) OF THE SAID NOTICE IT MAY BE APPRECIATED THAT VIDE THE SAID NOTICE ASSESSING OFFICER HAD DIRECTED INTER ALIA TO FURNI SH THE RETURN OF INCOME ON OR BEFORE 27 TH JULY 2005. THE NOTICE WAS RECEIVED BY THE APPELLAN T LONG AFTER THE SAID DATE AND THEREFORE IT WAS NOT POSSIBLE TO FURNISH THE RETUR N OF INCOME ON 27 TH JULY 2005. THE APPELLANT FURTHER SUBMITS THAT SINCE RETURN OF INC OME WAS ALREADY FRAMED BEFORE DUE DATE THE NOTICE U/S 142 REQUIRING TO FURNISH THE RETURN OF INCOME IS BAD IN LAW. 3.4 HEARING FIXED VIDE NOTICE DATED 11 TH JULY 2006 3.4 THE APPELLANT SUBMITS THAT THEREAFTER IT HAD RECEIVED A NOTICE DATED 11 TH JULY 2006 AND IN RESPONSE TO THE SAID NOTICE THE REPRESENTAT IVE OF THE APPELLANT COMPANY HAD ATTENDED BEFORE THE ASSESSING OFFICER AND INVITED HIS ATTENTION TO THE SUBMISSIONS PLACED ON HIS RECORDS ON 12 TH JUNE 2006. THE APPELLANT HOWEVER REGRETFULLY SUB MITS THAT THE ASSESSING OFFICER HAD INSISTED UPON THE PRESENCE O F A PARTICULAR PERSONS AND SINCE THE PARTICULARS PERSON WAS NOT AVAILABLE THE ASSESSING OFFICER DID NOT RECORD THE PRESENCE OF THE ANOTHER REPRESENTATIVE OF THE APPELLANT COMPAN Y. THE APPELLANT SUBMITS THAT SINCE THE NONCE U/S 142(1) WAS ALREADY COMPLIED WITH THE QU ESTION OF FURTHER COMPLIANCE HAD NOT ARISEN. THE APPELLANT SUBMITS THAT UNDER THE CIRCU MSTANCES PENALTY LEVIED WITH REFERENCE TO THE NOTICE DATED 11 TH JULY 2006 BE DELETED. 5.1 ON THE BASIS OF THE AFORESAID WRITTEN SUBMISSIO NS IT WAS CONTENDED THAT THE PENALTY LEVIED UNDER SECTION 271(1)(B) OF THE I. T. ACT AMOUNTING TO RS.50 000/- BE CANCELLED. 4 ITA NO. 834-AHD-2009 6. SHRI SAMIR TEKRIWAL SR.D.R. APPEARED ON BEHALF OF THE REVENUE AND VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). HE SUBMITTED THAT THE ASSESSEE HAS NOT COMPLIED WITH THE VARIOUS NOTI CES ISSUED BY THE ASSESSING OFFICER. THEREFORE THE PENALTY WAS RIGHTLY LEVIED AND CONFI RMED BY THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN THE IMPUGNED ORDER. 7. AFTER HEARING BOTH THE SIDES WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. ITAT DELHI BENCH IN THE CASE OF ITO VS- AS HOK SURI (1997) 58 TTJ (DEL) 162 HELD THAT PENALTY UNDER SECTION 271(1)(B) IS NOT EXIGIBL E WHEN THE ADDITION MADE IS DELAYED IN QUANTUM APPEAL. IT IS PERTINENT TO NOTE THAT IN THE INSTANT CASE ALSO THE ASSESSING OFFICER FRAMED THE ASSESSMENT UNDER SECTION 144 WHEREIN ONLY ADDIT ION WAS MADE FOR RS.19 910/-. THIS ADDITION HAS BEEN DELETED BY THE LEARNED COMMISSIONER OF INC OME TAX(APPEALS) VIDE ORDER DATED 05.10.2006. SINCE THERE IS NO TAX DUE ON ASSESSMENT AFTER CONSIDERING THE RELIEF ALLOWED BY LEARNED COMMISSIONER OF INCOME TAX(APPEALS) FOLLOW ING THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ITO-VS- ASHOK SURI ( SUPRA ) PENALTY UNDER SECTION 271(1)(B) IS NOT EXIGIBLE. FOR THIS REASON WE CANCEL THE PENALTY OF RS.50 000/- LEVIED BY THE ASSESSING OFFICER UNDER SECTION 271(1)(B) OF THE I.T.ACT 1961. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER PRONOUNCED IN THE COURT ON 25.02.2011 . SD/- SD/- (N.S.SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 25/02/2011 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE 2) THE DEPARTMENT. 3) CIT(A.) CONCERNED 4) CIT CONCERNED 5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGI STRAR ITAT AHMEDABAD TALUKDAR/SR.P.S. 5 ITA NO. 834-AHD-2009