Income Tax Appellate Tribunal - Indore
Smt. Pramila Ghodke, Indore vs The Dcit (Central)-I, Bhopal on 20 March, 2017
Smt. Pramila Ghodke, Indore vs. DCIT (Central)-I, Bhopal I.T.A.NOs. 1523 to 1529/Ind/2016 - A.Ys. 2008-09 to 2014-15 Page 1 of 7 आयकर अपील य अ धकरण ,इ दौर यायपीठ ,इ दौर IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE ी सी.एम.गग , या यक सद य तथा ी ओ.पी.मीना ,लेखा सद य के सम# BEFORE SHRI C. M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER आ.अ.सं /.I.T.A. Nos. 1523 to 1529/Ind/2016 नधा रण वष / Assessment Years: 2008-09 to 2014-15 Smt. Pramila Ghodke, vs. Dy. CIT, (Central)-I C/o R.L Rawka & Co., Bhopal 171, Netaji Subhash Marg, Indore.
अपीलाथ /Appellant
/ यथ //Respondent
था.ले.सं./PAN: ACHPG3486B
अपीलाथ क ओर से/Appellant by Shri Kamlesh Jain and
Shri Satish Rawka, Adv.
यथ क ओर से/Respondent by Shri Mohd. Javed, DR.
सुनवाई क तारीख/Date
तारीख/ of hearing 20.03.2017
उ ोषणा क तारीख/Date
तारीख/ of pronouncement 20.03.2017
आदेश /O
/ RDER
PER BENCH
These appeals are filed by the assessee against the
consolidated order of ld. Commissioner of Income tax (Appeals)-3, Bhopal, [hereinafter referred to as the CIT (A)] dated 07.10.2016. These appeals pertain to Assessment Years 2008-09 to 2014-15 which in turn have arisen from the penalty order dated 04.01. 2016 Smt. Pramila Ghodke, Indore vs. DCIT (Central)-I, Bhopal I.T.A.NOs. 1523 to 1529/Ind/2016 - A.Ys. 2008-09 to 2014-15 Page 2 of 7 u/s. 271(1)(b) of the Income Tax Act, 1961(hereinafter referred to as "the Act") by the DCIT (Central)-1 Bhopal [hereinafter referred to as the AO], for the above assessment years.
2. In the grounds of appeals, the assessee has assailed the order of Ld. CIT(A) in confirming the penalty of Rs.10,000/- levied under section 271(1)(b) of the Income-tax Act, 1961, for assessment years 2008-09 to 2014-15.
3. The facts of the case are that a search in the case of the assessee had taken place on 29.01.2014. Consequently, proceedings u/s 153A were initiated. After that notices were issued by the AO u/s 142(1) of the Income-tax Act, 1961, on 30.09.2015 fixing the date of hearing for 15.10.2015 to submit the required information/documents as per the questionnaire along with the books of accounts. It was specifically mentioned in the notice that failure to comply with the notice would lead to imposition of penalty u/s 271(1)(b) for Rs.10,000/-. On the date fixed for hearing i.e. on 15.10.2015, no submissions were filed with regard to the notice/questionnaire u/s 142(1) of the Act. Therefore, show cause notice for penalty was issued by the AO to the assessee on 07.12.2015 as to why the penalty should not be levied u/s 271(1)(b) Smt. Pramila Ghodke, Indore vs. DCIT (Central)-I, Bhopal I.T.A.NOs. 1523 to 1529/Ind/2016 - A.Ys. 2008-09 to 2014-15 Page 3 of 7 of the Act, for non-compliance to notice u/s 142(1) dated 30.09.2015. On the date of hearing i.e. on 15.12.2015 , again no reply/submissions were filed by the assessee on or before the date of hearing and no reason/explanation was given by the assessee for non-compliance on the said date. In view of the above facts, the AO levied the penalty u/s 271(1)(b) of the Act for Rs.10,000/- on 04.01.2016 for non-compliance to notice u/s 142(1) dated 30.09.2015 for hearing on 15.10.2015 for each assessment years from 2008-09 to 2014-15.
4. Being aggrieved, the assessee filed an appeal before the Ld. CIT(A) who confirmed the penalty by observing that the assessee did not make any compliance on the date fixed for hearing i.e. on 15.10.2015 for which notice u/s 142(1) of the Act, was issued by the AO. It was mentioned that request was made by the assessee for grant of time to furnish the reply. However, no copy of such request was filed. All these facts are not borne out in the penalty order in which the AO has clearly mentioned that no compliance was made by the assesse on that date. The case laws relied upon by the assessee are contradictory in nature and do not support the case of Smt. Pramila Ghodke, Indore vs. DCIT (Central)-I, Bhopal I.T.A.NOs. 1523 to 1529/Ind/2016 - A.Ys. 2008-09 to 2014-15 Page 4 of 7 the assessee. Hence the Ld. CIT(A) confirmed the penalty levied by the AO.
5. Being aggrieved, the assessee filed this appeal before the Tribunal. The Ld. AR contended before the AO that Sheri D.S. Tiwari, counsel of the assessee attended on 15.10.2015 before AO to seek further extension of time. Further, the ld. Authorized Representative of the assessee attended before AO on 17.12.2015 and filed the replies in all the cases including the case of the assessee. He further contended that the penalty u/s 271(1)(b) has been levied for default in not making the compliance on 15.10.2015 of the notices u/s 142(1) dated 30.09.2015. However, the assessment is made u/s 153A read with section 143(3) on subsequent compliance. Therefore, subsequent compliance are considered as good compliance and default committed earlier is ignored and, therefore, the penalty cannot be levied. In support of his contention the Ld. AR relied before the AO on the decisions in the case of Hindustan Steel Ltd., 83 ITR 26 (SC) to contend that penalty may not be imposed merely because it is lawful to do as on technical or venial breach of provision of law. The AR also cited following decision before Ld. CIT(A):-
Smt. Pramila Ghodke, Indore vs. DCIT (Central)-I, Bhopal I.T.A.NOs. 1523 to 1529/Ind/2016 - A.Ys. 2008-09 to 2014-15 Page 5 of 7
(i) Hotel Blue Moon, (2010) 321 ITR 362 (S.C.),
(ii) Ashok Chaddha, (2011) 337 ITR 399 (Del).
He further placed reliance on the case of Shankar Lal Soni, Indore v. ACIT, 13 ITJ 96 (Indore), Akhil Bhartiya Prathmik Shikshak Bhawan Trust v. ACIT, (2008) 115 TTJ 419 (Del), Parmeshwari Textile v. ITO 146 Taxman 38(Jd), Swarnaben M Khanna v. DCIT 37 SOT 24(Ahd).
6. On the other hand, the ld. DR relied on the orders of the lower authorities.
7. We have considered the facts, rival submissions and perused the material available on record. We find that the assessment in this case was made under section 143(3) of the Act, which means that there was subsequent compliance to the notices issued by the authorities. We also noted that Ld. counsel also attended before the AO on 17.12.2015 and filed replies in all the cases including the case of the assessee. The AO verbally agreed but counsel's presence was not recorded. We are of the view that the assessee has a reasonable cause for non-appearance on that day. Therefore, there is no justification for levying the penalty u/s 271(1)(b) of the Act. Secondly, in this matter, the assessments have been completed u/s 143(3) due to subsequent compliances in the assessment Smt. Pramila Ghodke, Indore vs. DCIT (Central)-I, Bhopal I.T.A.NOs. 1523 to 1529/Ind/2016 - A.Ys. 2008-09 to 2014-15 Page 6 of 7 proceedings, which was considered as good compliances and default committed earlier were ignored. We also bolster our view by placing reliance in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust v. ADIT (2008) 115 TTJ 419(Del)/115 ITJ 419 (Del), wherein it was held that where the assessee had not complied with notice u/s 142(1) but assessment order was passed u/s 143(3) and not u/s. 144, that meant that subsequent compliance in assessment proceedings was considered as good compliance and defaults committed earlier were ignored by the Assessing Officer, therefore levy of penalty u/s. 271(1)(b) of the Act was not justified. Thus, we set aside the orders of the Revenue Authorities and delete the levy of penalty u/s 271(1)(b) of the Act in these appeals.
8. In the result, appeals of the assessee stand allowed.
The order pronounced in the open court on 20.03.2017.
Sd/- Sd/-
(सी.एम.गग ) (ओ.पी.मीना)
याियक सद य लेखा सद य
(C.M.GARG) (O.P.MEENA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
दनांक /Dated : 20th March, 2017
CPU*
Smt. Pramila Ghodke, Indore vs. DCIT (Central)-I, Bhopal I.T.A.NOs. 1523 to 1529/Ind/2016 - A.Ys. 2008-09 to 2014-15 Page 7 of 7