Mr Sunil Kumar Das, Bhubaneswar v. ACIT, Bhubaneswar

ITA 88/CTK/2009 | 2000-2001
Pronouncement Date: 23-07-2010 | Result: Allowed

Appeal Details

RSA Number 8822114 RSA 2009
Bench Cuttack
Appeal Number ITA 88/CTK/2009
Duration Of Justice 1 year(s) 4 month(s) 23 day(s)
Appellant Mr Sunil Kumar Das, Bhubaneswar
Respondent ACIT, Bhubaneswar
Appeal Type Income Tax Appeal
Pronouncement Date 23-07-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 23-07-2010
Date Of Final Hearing 19-07-2010
Next Hearing Date 19-07-2010
Assessment Year 2000-2001
Appeal Filed On 02-03-2009
Judgment Text
( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET IN THE INCOME-TAX APPELLATE TRIBUNAL CUTTACK BENCH; CUTTACK (BEFORE S/SHRI D.K.TYAGI JM & K.K. GUPTA AM.) I.T.A.NOS.88 TO 94/CTK/2009 ASSESSMENT YEARS: 2000-01 TO 2006-07 SUIL KUMAR DAS V. THE ACIT CIRCLE 1(2) M-132 BARAMUNDA HOUSING BOARD COLONY BHUBANESWAR. PA NO.AECPD 0787 K (APPELLANT) (RESPONDENT) APPELLANT BY:S/SHRI G.NAIJK/ RAJAT KUMAR KAR RESPONDENT BY: SHRI H..M.MOHARANA ORDER PER BENCH: THESE APPEALS BY THE ASSESSEE RELATE TO LEVY OF PENALTY AMOUNTING TO RS.10 000/- EACH FOR THE ASSESSMENT YEARS 2000-2001 TO 2006-07 FOR NON-COMPLIANCE TO NOTICE DATED 26.11.2007 ISSUED UNDER SECTION 142(1) OF THE I.T.ACT 1961 FIXING THE DATE OF HEARING ON 30.11.2007. 2. BRIEF FACTS RELATING TO THE ISSUE IN DISPUTE ARE THAT THE ASSESSEE SUBMITTED BEFORE THE AO THAT HIS AUTHORISED REPRESENTATIVE SHRI D.K.SAHU ADVOCATE WHO HAD BEEN ENGAGED TO CONDUCT HIS CASE COULD NOT ATTEND THE HEARING IN RESPONSE TO NOTICE DATED 26.11.2009 BECAUSE OF HIS ILLNESS. THE FAILURE TO ATTEND THE HEARING WAS ONLY ON ONE OCCASION I.E. ON 30.11.2007 WAS UNINTENTIONAL AND DUE TO A REASONABLE CAUSE. IT WAS SUBMITTED THAT THE EXPLANATION OFFERED BY THE ASSESSEE WAS BONAFIDE ON THE BELIEF THAT COMPLIANCE ON 30.11.2007 MUST HAVE BEEN MADE BY THE AUTHORIZED REPRESENTATIVE BUT ON RECEIPT OF THE IMPUGNED ORDERS THE ASSESSEE HAD NOT ACTED DELIBERATELY IN NOT ATTENDING THE DATE OF HEARING FIXED ON 30.11.2007. THE LEVY OF PENALTY BECOMES PUNITIVE FOR ALL THESE ASSESSMENT YEARS IN VIEW OF THE FACT THAT AO HAD NOT CONSIDERED THE PROVISIONS OF SECTION 273B OF THE I.T.ACT. ( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET 3. LD COUNSEL FOR THE ASSESSEE RELIED ON THE DECISION OF THE HOBNBLE APEX COURT IN THE CASE OF HINDUSTAN STEEL LTD V STATE OF ORISSA 83 ITR 26 (SC) WHEREIN IT WAS OBSERVED THAT AN ORDER IMPOSING PENALTY FOR FAILURE TO CARRY OUT A STATUTORY OBLIGATION IS THE RESULT OF A QUASI-CRIMINAL PROCEEDINGS AND PENALTY OUGHT NOT TO BE ORDINARILY IMPOSED UNLESS THE PARTY OBLIGED EITHER ACTED DELIBERATELY IN DEFIANCE OF LAW OR WAS GUILTY OF CONDUCT CONTUMACIOUS OR DISHONEST OR ACTED IN CONSCIOUS DISREGARD OF ITS OBLIGATIONS. THE PENALTY WILL NOT BE IMPOSED MERELY BECAUSE IT IS LAWFUL TO DO SO. THE DISCRETION SHOULD BE APPLIED AS IS AVAILABLE TO THE AUTHORITY UNDER THE PROVISIONS OF SECTION 273B. 4. LD COUNSEL FOR THE ASSESSEE HAS ALSO RELIED ON THE DECISION OF THE ITAT CUTTACK BENCH IN THE CASE OF SMT DEBAJANI DAS APPELLANTS WIFE COPY OF ORDER IS BEING FURNISHED WHEREIN VIDE A COMMON ORDER DATED 4.12.2009 ON SIMILAR FACTS AND CIRCUMSTANCES THE TRIBUNAL IN PARA IN 8.1 AT PAGE 5 OF THE ORDER OBSERVED THAT WE ARE NOT CONVINCED WITH THE STAND OF THE REVENUE THAT THE FAILURE TO ATTEND THE HEARING ON 3.11.2007 WAS IN DEFIANCE OF LAW AND CONSEQUENTLY WE ARE OF THE OPINION THAT IT IS NOT A FIT CASE TO LEVY PENALTY U/S.271(1)(B) OF THE ACT. 5. LD D.R. HAS NOT OFFERED ANY FURTHER COMMENTS ON THE SUBMISSIONS OF LD COUNSEL FOR THE ASSESSEE. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ARE OF THE CONSIDERED OPINION THAT THE ISSUE STANDS COVERED BY THE DECISION OF THE ITAT CUTTACK BENCH IN THE CASE OF SMT. DEBAJANI DAS ASSESSEES WIFE(SUPRA). SINCE THE FACTS BEFORE US ARE IDENTICAL WE ARE INCLINED TO HOLD THAT THE AO TOOK NOTE OF THE FACT THAT THE ASSESSEE HAD REMAINED ABSENT HIMSELF EARLIER IN THE MONTH OF OCTOBER ON TWO OCCASIONS WHICH REASON WAS SUFFICIENT TO HOLD THAT THE ASSESSEE HAD NOT DELIBERATELY RESPONDED ON THE DATE OF HEARING I.E. ON 30.11.2007 WHEN HE HAD AUTHORIZED ADVOCATE SRI D.K.SAHU WHO COULD NOT ATTEND DUE TO HIS ILLNESS. HAVING SUBMITTED A REASONABLE CAUSE FOR THE NON-APPEARANCE UNDER THE PROVISIONS OF SECTION 273B THEREFORE JUSTIFIED THE CANCELLATION OF PENALTY AS WAS DONE IN THE CASE OF ASSESSEES WIFE AS PER THE ORDER ( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET DATED 4.12.2009 PLACED ON RECORD. IN VIEW OF THE ABOVE DISCUSSION AND FOLLOWING THE DECISION OF THE ITAT IN THE CASE SMT DEBAJANI DAS (SUPRA) WE ARE INCLINED TO HOLD THAT THE PENALTY IS NOT LEVIABLE. ACCORDINGLY WE DELETE THE PENALTY IN ALL THE ASSESSMENT YEARS. 7. IN THE RESULT APPEALS FILED BY THE ASSESSEE ARE ALLOWED. PRONOUNCED ON THE OPEN COURT ON THE DATE OF HEARING. SD/ SD/- (D.K.TYAGI) (K.K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23 RD JULY 2010 PARIDA COPY TO : 1. ASSESSEES- SRI SUNIL KUMAR DAS M-132 BARAMANDU HOUSING BOARD COLONY BHUBANESWAR. 2. ASSESSING OFFICER 3. CIT 4. D.R. ITAT CUTTACK. TRUE COPY BY ORDER SR. PVT. SECRETARY