Income Tax Appellate Tribunal - Delhi
M/S. Macadam Road Makers Pvt. Ltd., ... vs Acit, New Delhi on 1 September, 2017
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ITA.Nos.6403 & 6404/Del./2014 M/s. Macadam
Road Makers Pvt. Ltd., Delhi.
IN THE INCOME TAX APPELLATE TRIBUNAL :
DELHI BENCHES "E" : DELHI
BEFORE SHRI BHAVNESH SAINI, J.M. & SHRI O.P. KANT, A.M.
ITA. No.6403 & 6404/Del./2014
Assessment Year 2009-2010
M/s. Macadam Road
Makers P. Ltd., A-1, CC vs. The ACIT, Central Circle-12,
Colony, Opp. R.P. Bagh, New Delhi.
Delhi. PAN AAFCM9017R
(Appellant) (Respondent)
For Assessee : Shri S.B. Gupta, C.A.
For Revenue : Smt. Swetha Nakara Datta, Sr. D.R.
Date of Hearing : 28.08.2017
Date of Pronouncement : 01.09.2017
ORDER
PER BHAVNESH SAINI, J.M.
Both the appeals by the assessee are directed against different orders of the Ld. CIT(A)-XXXI, New Delhi, dated 1st September, 2014 for the A.Y. 2009-2010, challenging the levy of penalty under section 271(1)(b) of the I.T. Act, 1961.
2. We have heard the learned Representatives of both the parties and perused the material on record.
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ITA.Nos.6403 & 6404/Del./2014 M/s. Macadam Road Makers Pvt. Ltd., Delhi.
3. In ITA.No.6404/Del./2014 (A.Y. 2009-2010), the Ld. CIT(A) noted that the A.O. has issued notice under section 143(2)/ 142(1) of the I.T. Act, 1961 fixing the case for hearing on 11th January, 2013 and none had attended on that date. The assessee submitted in the written submissions that said notice had not been received by them till 11th January, 2013. The Ld. CIT(A) further noted that A.O. followed-up the non-compliance to the above said notice, issued show cause notice for levying penalty under section 271(1)(b) on 28th March, 2013 and fixed the case for hearing on 22nd April 2013. No one attended the proceeding on the said date. In the written submissions made during the course of appellate proceedings, the Ld. A.R. has not given any reasoning for non-compliance to the said show cause notice. The A.O. issued another show-cause notice on 5th August, 2013 and fixed the case for hearing on 27th August, 2013. Again there were no compliance. The A.O. therefore, levied the penalty of Rs.10,000 for each of the three assessment years.
4. The assessee submitted before the Ld. CIT(A) that Smt. Abha Gupta, daughter-in-law of the Principal Officer of the assessee company namely Mr. Satya Prakash Gupta has to be hospitalized on 3 ITA.Nos.6403 & 6404/Del./2014 M/s. Macadam Road Makers Pvt. Ltd., Delhi.
11th January, 2013. Further, he submitted that Mr. Satya Prakash Gupta, Principal Officer of the assessee company had to be hospitalized due to heart-attack and therefore, there were non- compliance of the said notices. The Ld. CIT(A) however, noted that the assessee did not explain these facts before the A.O. The Ld. CIT(A) also noted that during assessment proceedings which are time barring in nature, the details required by the A.O. were not filed on time. In case details are filed at the last movement, the A.O. would be having no time to process the information received. The reasons given by the assessee did not explain the total non-compliance. The Ld. CIT(A) however, noted that there is a merit in levying the penalty in spite of certain procedural deficiencies pointed out by the assessee. However, levying penalty for three years, in the view of the Ld. CIT(A), would be harsh on the assessee. The Ld. CIT(A), accordingly, confirmed the levy of penalty for A.Y. 2009-2010 under appeal but penalty for A.Ys. 2010-2011 and 2011-2012 were deleted. The common order is passed for all these three years.
5. In ITA.No.6403/Del./2014 (A.Y. 2009-2010), the Ld. CIT(A) noted similar facts that penalty was imposed for non- 4
ITA.Nos.6403 & 6404/Del./2014 M/s. Macadam Road Makers Pvt. Ltd., Delhi.
compliance of the statutory notices issued on 9th October, 2012. The assessee submitted in the written submissions that Mrs. Anju Gupta, daughter-in-law of the Principal Officer of the assessee-company was suffering from severe disease and had to be hospitalized on 6th October, 2012. Thereafter, on 9th October, 2012 Shri Satya Prakash Gupta, Principal Officer of the assessee-company himself suffered from heart-attack and had to be hospitalized. The whole family were disturbed. Therefore, there were no compliance. The Ld. CIT(A) given the same finding as have been given in ITA.No.6404/Del./2014 and confirmed the levy of penalty for assessment year under appeal i.e., 2009-2010, however, deleted the similar penalty levied for A.Ys. 2010-2011 and 2011-2012 in the common order.
6. Learned Counsel for the Assessee reiterated the submissions made before the Ld. CIT(A) and submitted that the reasons given by the assessee for non-compliance have not been disputed by the Ld. CIT(A) which clearly disclosed reasonable cause for failure to comply with the notices. Learned Counsel for the Assessee also submitted that Ld. CIT(A) decided the appeals for three years each in both the impugned orders and on the same reasoning 5 ITA.Nos.6403 & 6404/Del./2014 M/s. Macadam Road Makers Pvt. Ltd., Delhi.
and explanation, the Ld. CIT(A), cancelled the penalty for two years. Meaning thereby, the explanation offered by the assessee has been accepted that no penalty is leviable. He has relied upon the common order of ITAT, SMC Bench, in the case of Smt. Usha Gupta etc., vs. ACIT, Central Circle-12, New Delhi in ITA.Nos.6368 & 6371/Del./ 2014 etc., decided on 4th November, 2015 in which the A.O. levied the penalty for seven assessment years under section 271(1)(b) of the I.T. Act and the Ld. CIT(A), deleted the penalty for four years. Considering the explanation of assessee to be proper, the Tribunal cancelled the penalty for the remaining years as well. He has submitted that the similar explanation for Mrs. Anju Gupta and Shri Satya Prakash Gupta have been considered for non-compliance in their cases on 9th October, 2012. Copy of the order is placed on record. Similar order of the Tribunal in the case of Saraswati Resorts Pvt. Ltd., Delhi vs. ACIT, Central Circle-12, New Delhi ITA.No.6281 to 6383/Del./2014 etc., decided on 4th January, 2016 is relied upon by the Learned Counsel for the Assessee. Copy of the order is placed on record. On identical facts, the Tribunal cancelled the penalty levied under section 271(1)(b) of the I.T. Act.
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ITA.Nos.6403 & 6404/Del./2014 M/s. Macadam Road Makers Pvt. Ltd., Delhi.
7. On the other hand, the Ld. D.R. relied upon the orders of the authorities below.
8. We have considered the rival contentions and perused the findings of the authorities below. The assessee explained the reasons for non-compliance of the notices dated 11th January, 2013 and 9th October, 2012 as noted above, which have not been disputed through any evidence or material on record. The Ld. CIT(A) for two years in each appeal have deleted the penalty. Meaning thereby, the Ld. CIT(A) was satisfied with the explanation of the assessee. Therefore, he should not have taken different view for one year on the same reasoning. In cases of Mrs. Usha Gupta etc., and Saraswati Resorts Pvt. Ltd., and another (supra), on the same reasoning, the penalty levied under section 271(1)(b) have been cancelled by the Tribunal. It, therefore, appears that assessee has disclosed the reasonable cause for failure to comply with the statutory notice and on the same reasoning, the Ld. CIT(A), cancelled the penalty under section 271(1)(b) of the I.T. Act for two years in both the appeals. Therefore, following the rule of consistency, the Ld. CIT(A) should have cancel the penalty in this year as well. We, accordingly, set aside the orders 7 ITA.Nos.6403 & 6404/Del./2014 M/s. Macadam Road Makers Pvt. Ltd., Delhi.
of the Ld. CIT(A) and cancel the penalty. Accordingly, the grounds of the assessee are allowed.
9. In the result, both the appeals of the assessee are allowed.
Order pronounced in the open Court.
Sd/- Sd/-
(O.P. KANT) (BHAVNESH SAINI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Delhi, Dated 01st September, 2017
VBP/-
Copy to
1. The appellant
2. The respondent
3. CIT(A) concerned
4. CIT concerned
5. D.R. ITAT "E" Bench, Delhi.
6. Guard File.
//By Order//
ASST. REGISTRAR
ITAT DELHI BEHCHES
DELHI.