Shri Bholabhai V.Patel, Ahmedabad v. The ACIT.,Cent.Circle-1(4),, Ahmedabad

ITSSA 398/AHD/2011 | 2001-2002
Pronouncement Date: 11-11-2011 | Result: Allowed

Appeal Details

RSA Number 39820516 RSA 2011
Assessee PAN ADYPP8083F
Bench Ahmedabad
Appeal Number ITSSA 398/AHD/2011
Duration Of Justice 5 month(s)
Appellant Shri Bholabhai V.Patel, Ahmedabad
Respondent The ACIT.,Cent.Circle-1(4),, Ahmedabad
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 11-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted D
Tribunal Order Date 11-11-2011
Assessment Year 2001-2002
Appeal Filed On 10-06-2011
Judgment Text
/ // / / // / / // / IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD ! ! ! ! .#$ !#$ %& % ' BEFORE SHRI MUKUL KR.SHRAWAT JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER APPEAL(S) BY APPELLANT VS. RESPONDENT SL. NO(S). IT(SS)A NO(S) ASSESSMENT YEAR(S) APPELLANT RESPONDENT 1. 398/AHD/2011 2001-02 BHOLABHAI V.PATEL C/119 SUNRISE PARK SOCIETY DRIVE-IN ROAD AHMEDABAD PAN : ADYPP 8083 F ACIT CENTRAL CIRCL-1(4) AHMEDABAD 2. 399/AHD/2011 2002-03 -DO- -DO- 3. 400/AHD/2011 2003-04 -DO- -DO- 4. 401/AHD/2011 2004-05 -DO- -DO- ASSESSEE BY : SHRI PRITESH SHAH A.R. REVENUE BY : SHRI B.L.YADAV D.R. $( ) &/ // / DATE OF HEARING : 04/11/2011 *#+ ) & / DATE OF PRONOUNCEMENT : 11/11/11 % / O R D E R PER SHRI MUKUL KR. SHRAWAT JUDICIAL MEMBER : THESE APPEALS AT THE BEHEST OF THE ASSESSEE H AVE EMANATED FROM A CONSOLIDATED ORDER OF LEARNED CIT(APPEALS)-I AHM EDABAD DATED 03.03.2011. FOR ALL THE FOUR YEARS THE APPELLANT HAS CHALLENGE D THE LEVY OF PENALTY U/S.271(1)(B) OF THE I.T.ACT. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING PENALTY ORDERS PASSED U/S.271(1)(B) OF THE I.T. ACT 1961 IDENTICA LLY DATED 22/06/2009 IT(SS)A NOS.398 TO 401/AHD/2011 BHOLABHAI V.PATEL VS. ACIT AYS 2001-02 TO 2004-05 ( RESPECTIVELY ) - 2 - AND THE ASSESSMENT ORDERS PASSED U/S.153A(1)(B) RWS 144 OF THE I.T.ACT ALSO IDENTICALLY DATED 31/12/2008 WERE THAT THE ASS ESSEE WAS SUBJECTED TO SEARCH ON 1/11/2006. IN CONSEQUENCE THEREOF ASS ESSMENT PROCEEDINGS WERE INITIATED U/S.153A(1) OF THE I.T.ACT AND A ST ATUTORY NOTICE U/S.153A(1)(A) DATED 21.1.2008 WAS ISSUED. IN COMP LIANCE THEREOF ASSESSEE HAS FURNISHED RETURN OF INCOME IN RESPECT OF EACH OF THE ASSESSMENT YEAR. FOR A.Y. 2001-02 INCOME DECLARED AT RS.1 33 430/- FOR A.Y. 2002-03 AT RS.1 22 310/- FOR A.Y. 2003-04 AT RS.1 10 980/- AND FOR A.Y. 2004-05 THE INCOME WAS DECLARED AT RS.1 11 567 /-. IN ALL THE YEARS RESPECTIVELY INCOMES-TAX RETURNS WERE FILED ON 28/ 03/2008. THEREAFTER FOR ALL THE YEARS NOTICES U/S.143(2) WAS ISSUED ON 03/06/2008. SUBSEQUENTLY A NOTICE U/S.142(1) WAS ISSUED ON 25/0 7/2008 WHICH WAS SERVED ON THE ASSESSEE ON 14/08/2008 REQUIRING HIM TO FURNISH DETAILS AND EXPLANATION. IN RESPONSE TO THE SAID NOTICE THE A SSESSEE HAS ADMITTEDLY FURNISHED DETAILS ON 27/08/2008. THEREAFTER AN AN OTHER NOTICE U/S.143(2) AND A NOTICE U/S.142(1) WAS STATED TO BE SERVED ON THE ASSESSEE ON 11/12/2008. ON THAT VERY DAY OF SERVICE OF THE SA ID NOTICE THE ASSESSEE WAS REQUIRED TO FURNISH DETAILS FOR THE PURPOSE OF FINALIZATION OF ASSESSMENT. THE ASSESSING OFFICER HAS ALLEGED THAT NO COMPLIANCE WAS MADE BY THE ASSESSEE OF THE LAST SERVED NOTICE AND THEREFORE HE HAS PROCEEDED TO FINALIZE THE ASSESSMENT U/S.144 OF IT ACT. IT HAS ALSO BEEN PLACED ON RECORD THAT THE ASSESSMENT WAS COMPLETED ON THE SAME INCOME AS DECLARED BY THE ASSESSEE AS PER THE INCOME TAX R ETURNS AMOUNTS MENTIONED HEREINABOVE. AT THIS JUNCTURE THE LEARNE D AUTHORISED REPRESENTATIVE OF THE ASSESSEE MR.PRITESH SHAH HAS EMPHASIZED THAT NO ADDITION WHATSOEVER WAS MADE AND THE RETURNED INCO ME WERE ACCEPTED AS SUCH BY THE ASSESSING OFFICER. IT(SS)A NOS.398 TO 401/AHD/2011 BHOLABHAI V.PATEL VS. ACIT AYS 2001-02 TO 2004-05 ( RESPECTIVELY ) - 3 - 2.1. WHILE IMPOSING THE PENALTY US/.271(1)(B) OF TH E I.T.ACT THE ONLY REASON ASSIGNED BY THE ASSESSING OFFICER WAS THAT A NOTICE U/S.143(2) OF THE I.T.ACT WAS SERVED ON THE ASSESSEE ON 11/12/200 8 BUT NEITHER THE ASSESSEE HAS ATTENDED NOR FILED ANY WRITTEN SUBMISS ION. IN HIS OPINION THE ASSESSEE HAS COMMITTED A DEFAULT BY NOT COMPLYI NG THE SAID NOTICE HENCE SUBJECTED TO LEVY OF PENALTY. ACCORDINGLY FOR EACH ASSESSMENT YEAR A PENALTY OF RS.10 000/- RESPECTIVELY WAS IMPO SED. 3. WHEN THE MATTER WAS CARRIED BEFORE THE FIRST APP ELLATE AUTHORITY THE ASSESSEE HAS FURNISHED A REPLY RELEVANT PORTIO N EXTRACTED BELOW:- 3. (1) THE APPELLANT HAS COMPLIED AND SUBMITTED DETAI LS REQUIRED U/S.142(1)/U/S.153A OF THE I.T. ACT. (A) IN REPLY TO NOTICE NO.ACIT/CC.1(2)/BVP/2008-09 DATED 25.07.2008 TO REPLY ON 27.08.2008. THE APPELLANT SUBMITTED REPLY DATED 27.07.2008 AS ON APPOINTED DATED. THE COPY OF REPLY TOGETHER WITH ACKNOWLEDGEMENT BY THE OFFICE OF THE ASSESSING OFFI CER ALSO ENCLOSED HEREWITH. (B) IN REPLY TO ANOTHER NOTICE NO.ACIT/CC.1(2)/BVP/2008 - 09 DATED 25.07.2008 TO REPLY ON DATED 27.08.2008. THE APPELLANT SUBMITTED REPLY DATED 27.07.2008 AS ON APPOINTED DATE. (2). THE APPELLANT HAS ALSO PERSONALLY ATTENDED ON 27.08.2008. THE APPELLANT HAS COMPLIED THE NOTICES AND SUBMITTED ALL DETAILS TOGETHER BANK STATEMENT. THEREFORE NOTING LEFT TO FINALISE THE ASSESSMENT. THE APPELLANT HAS NO BUSINESS INCOME. HENCE NO BOOKS IT(SS)A NOS.398 TO 401/AHD/2011 BHOLABHAI V.PATEL VS. ACIT AYS 2001-02 TO 2004-05 ( RESPECTIVELY ) - 4 - OF ACCOUNTS ALSO. THERE WERE NOMINAL INCOME FROM SALARY AND PENSION. (3) AS REGARD NOTICE U/S.271(1)(B) OF THE INCOME- TAX ACT DATED 27.06.2009 ISSUED BY THE ASSESSING OFFICER WA S RETURN BACK AS LEFT. THAT MEANS APPELLANT HAS CHANGED HIS RESIDENCE ADDRESS. IN ACT APPELLANT LE FT THE SAID RESIDENCE EVEN NOTICE U/S.271(1)(B) ALSO N OT NECESSARY AS THE APPELLANT HAS PROVIDED ALL DETAILS REQUIRED FOR ASSESSMENT. 4. APART FROM ABOVE THE COUNSEL OF THE APPELLANT ALSO BROUGHT TO MY NOTICE THAT ONE LETTER DATED 16.12.20 08 WAS FILED BY THE APPELLANT IN THE RECEIPT COUNTER OF TH E ASSESSING OFFICERS CHARGE ON 17.12.2008. THIS LETTER READS AS UNDER:- I FURTHER STATE THAT AS REGARD REPLY OF SEIZED MAT ERIAL ANNEXURE MENTIONED IN YOUR NOTICE I STATE THAT THE REPLY / STATEMENT RECORDED AT THE TIME OF RAID AND THEREAFTER WITHIN 2 MONTHS MAY BE CONSIDERED FOR ASSESSMENT PURPOSE. 3.1. HOWEVER THE LEARNED CIT(APPEALS) WAS NOT CONV INCED AND HELD THAT THE ASSESSEE HAS MERELY FILED A LETTER IN THE RECEIPT COUNTER BUT FAILED TO ATTEND THE PROCEEDINGS. ACCORDING TO HI M THE ASSESSING OFFICER HAD NO OPTION BUT TO PASS A BEST JUDGEMENT ASSESSME NT U/S.144. IN THE OPINION OF LD.CIT(A) PENALTY WAS RIGHTLY IMPOSED. 4. FROM THE SIDE OR THE REVENUE LEARNED DEPARTMENT AL REPRESENTATIVE MR.B.L. YADAV ARGUED THAT THE ASSESS EE WAS DUTY BOUND TO ATTEND THE PROCEEDINGS PERSONALLY INSTEAD OF A SHORT REPLY THAT TOO IT(SS)A NOS.398 TO 401/AHD/2011 BHOLABHAI V.PATEL VS. ACIT AYS 2001-02 TO 2004-05 ( RESPECTIVELY ) - 5 - FURNISHED IN THE DAK-COUNTER HENCE A DEFAULT WAS C OMMITTED OF NON- ATTENDANCE OF THE PROCEEDINGS THEREFORE PENALTY WAS RIGHTLY LEVIED. ON THE OTHER HAND FROM THE SIDE OF THE APP ELLANT LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE MR.PRITES H SHAH HAS ARGUED THAT AT THE FAG END OF THE YEAR WHEN THE TIME FOR C OMPLETION OF THE ASSESSMENT WAS ABOUT TO BE BARRED BY LIMITATION TH E ASSESSING OFFICER HAS ISSUED A NOTICE IN THE MONTH OF DECEMBER-2008 A ND IN A HURRIED MANNER FINALIZED THE ASSESSMENT U/S 144 ON 31.12.20 08. BUT THE SAVING PART WAS THAT THE RETURNED INCOME WERE ACCEPTED WIT HOUT ANY CHANGE OR ADDITION. IN FACT THE ASSESSEE HAS NOT COMMITTED ANY DEFAULT BECAUSE A WRITTEN REPLY WAS SUBMITTED WHEREIN IT WAS CATEGORI CALLY STATED THAT RELEVANT DETAILS HAVE ALREADY BEEN FURNISHED IN THE PAST AND THOSE DETAILS MAY BE CONSIDERED AT THE TIME OF COMPLETION OF ASSE SSMENT. IT WAS NOT A NOTICE U/S.131 OF THE I.T.ACT FOR PERSONAL APPEARAN CE THEREFORE THE ASSESSEE HAS NOT COMMITTED ANY DEFAULT LD A.R. HAS PLEADED. 5. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES WE ARE OF THE CONSIDERED VIEW THAT THE PENALTY HAS WRONGLY BEEN L EVIED. FROM THE FACTS NARRATED HEREINABOVE IT IS EVIDENT THAT THIS IS NO T THE CASE OF A PERSON ALLEGED TO BE A HABITUAL DEFAULTER OF NON-COMPLIANC E OF THE NOTICES OF THE REVENUE DEPARTMENT. ON THE CONTRARY THE APPELLANT HAD EARLIER COMPLIED WITH ALL THE NOTICES ISSUED BY THE REVENUE DEPARTMENT SUCH AS FURNISHING OF INCOMES RETURN IN COMPLIANCE OF NOTIC E U/S.153A(1)(A) OF THE I.T.ACT AS ALSO FURNISHING OF DETAILS IN COMPL IANCE OF NOTICE U/S.143(2) DATED 03/06/2008 AND DUE COMPLIANCE OF A NOTICE U/S.142(1) DATED 25/07/2008. ADMITTEDLY THE REQUISITE DETAIL S WERE FURNISHED BY THE ASSESSEE ON 27/08/2008. AT ONE STAGE OF ASSESSMENT PROCEEDING IT WAS IT(SS)A NOS.398 TO 401/AHD/2011 BHOLABHAI V.PATEL VS. ACIT AYS 2001-02 TO 2004-05 ( RESPECTIVELY ) - 6 - FOUND THAT THE ASSESSEE HAD ATTENDED THE SAME. EVEN IN COMPLIANCE TO THE IMPUGNED NOTICE DATED 11.12.2008 A LETTER DATED 16 /12/2008 WAS ADMITTEDLY FILED ON 17/12/2008 AT THE RECEIPT COUN TER OF THE ASSESSING OFFICER THROUGH WHICH IT WAS INFORMED THAT THE DETA ILS ALREADY FURNISHED MAY BE CONSIDERED FOR ASSESSMENT PURPOSE. SINCE A REPLY HAS BEEN FURNISHED THEREFORE ASSESSEE MUST NOT BE TREATED A DEFAULTER OF NON- COMPLIANCE OF THE SAID NOTICE. IT WAS WRONG ON THE PART OF LD.CIT(A) TO HOLD THAT THE ASSESSEE SHOULD HAVE PERSONALLY ATTEN DED THE ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER BECAUSE T HE IMPUGNED NOTICE WAS NOT IN THE NATURE OF SUMMONS OF THE REVENUE DEP ARTMENT. ADMITTEDLY A COMPLIANCE WAS MADE BY FILING A LETTER THROUGH DAK- COUNTER. WE ARE OF THE VIEW THAT THE PROVISIONS O F SECTION 143(2) OF THE I.T.ACT DO NOT PRESCRIBE A PERSONAL ATTENDANCE. IT HAS BEEN RIGHTLY ARGUED THAT A NOTICE U/S.143(2) IS NOT BE CONSIDERED AT P AR WITH THE SUMMONS UNDER IT ACT ISSUED U/S.131 OF THE I.T.ACT. THEREF ORE ONE HAS TO BEAR THIS DISTINCTION IN MIND BEFORE ALLEGING THE IMPUGN ED DEFAULT OF NON- COMPLIANCE. AN ALTERNATE PLEA HAS ALSO BEEN RAISED THAT THE STATUTE HAS PRESCRIBED AN EXCEPTION VIDE SECTION 273B OF THE I. T.ACT WHEREIN NO PENALTY SHALL BE IMPOSABLE ON THE PERSONS FOR ANY D EFAULT REFERRED THEREIN I.E. SECTION 271(1)(B) OF THE I.T.ACT IF T HE ASSESSEE PROVES THAT THERE WAS A REASONABLE CAUSE FOR THE SAID FAILURE. THE ASSESSEE IN THE PRESENT CASE WAS UNDER BONA FIDE BELIEF THAT THE RE QUISITE DETAILS HAD ALREADY BEEN FURNISHED AS DESIRED THROUGH THE SAID NOTICE THEREFORE VIDE A LETTER IT WAS SO COMMUNICATED AND IN GOOD FAITH IT WAS PRESUMED THAT A PROPER COMPLIANCE OF THE SAID NOTICE HAD BEEN MADE. ACCORDING TO US ON BOTH THE COUNTS THIS IS NOT A FIT CASE FOR LEVY OF PENALTY U/S.271(1)(B) OF IT(SS)A NOS.398 TO 401/AHD/2011 BHOLABHAI V.PATEL VS. ACIT AYS 2001-02 TO 2004-05 ( RESPECTIVELY ) - 7 - THE I.T.ACT THEREFORE WE HEREBY DIRECT TO DELETE T HE PENALTY. GROUND RAISED IN THIS REGARD IS HEREBY ALLOWED. 6. IN THE RESULT ASSESSEES APPEALS FOR ALL THE YEARS ARE ALLOWED . SD/- SD/- (A. MOHAN ALANKAMONY) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD; DATED 11/ 11 /2011 -..$ .$../ T.C. NAIR SR. PS % ) ./ 0%/+ % ) ./ 0%/+ % ) ./ 0%/+ % ) ./ 0%/+/ COPY OF THE ORDER FORWARDED TO : 1. 12 / THE APPELLANT 2. .312 / THE RESPONDENT. 3. !! 4 / CONCERNED CIT 4. 4() / THE CIT(A)-I AHMEDABAD 5. /78 .$ / DR ITAT AHMEDABAD 6. 8 9( / GUARD FILE. % $ % $ % $ % $ / BY ORDER 3/ . //TRUE COPY// : :: :/ // / !; !; !; !; ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD 1. DATE OF DICTATION..04.11.11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 08.11.11 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 11.11.11. 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 11.11.11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER