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Mr.Rakeshkumar M Gupta, Prop.M/s Manoj Mills, Shop No.4, Ram Gally, Mumbai-400002 Vs. Income Tax Officer Ward 14(3)(2), Earnest House, Nariman Point, Mumbai-400021
October, 09th 2014
                   ,                  ""          
     IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, MUMBAI

        BEFORE HON'BLE S/SHRI D. MANMOHAN , VICE-PRESIDENT
                    AND B.R.BASKARAN (AM)
            , .  ,    .. ,   

             ./I.T.A. Nos.371 to 374./Mum/2013
 (   / Assessment Years : 2003-04 to 2005-06 and 2008-09)

 Mr.Rakeshkumar M Gupta,         / Income Tax Officer
 Prop.M/s Manoj Mills,               Ward 14(3)(2),
                                 Vs.
 Shop No.4, Ram Gally,                    Earnest House, ,
 Pankaj Market, Champa Gally,             Nariman Point,
 Cross Lane,                              Mumbai-400021
 Mumbai-400002
      ( /Appellant)               ..      (    / Respondent)
           . /   . / P AN/GIRNo.: AAJPG9761F

           / Appellant by : Shri Rushabh Mehta
           /Respondent by: Shri Love Kumar

            / Date of Hearing
                                               : 29.9.2014
           /Date of Pronouncement : 29.9.2014

                               / O R D E R

Per B.R.BASKARAN, Accountant Member:

      All the appeals filed by the Assessee are directed against the common
order dated 5.10.2012 passed by Ld CIT(A)-25, Mumbai and they     relate to
assessment years 2003-04 to 2005-06 and 2008-09.

2.    The assessee is aggrieved by the decision of ld.CIT(A) in
partially confirming the penalty       levied u/s 271(1)(b) of the Income
Tax Act, 1961 (the Act) to the extent of Rs.20,000/- in each of the
above said years.    Since the above said penalty was levied under
identical set of facts, these appeals were heard together and they
are being disposed of by this common order, for the sake of
convenience.
                                          2               I.T.A. Nos.371 to 374/ Mum/2013






3.     The facts relating to the above said issue are stated in brief. During the
course of assessment proceedings, the AO initiated penalty proceedings u/s
271(1)(b) of the Act on the ground that the assessee did not respond to various
notices issued by the AO. The AO issued penalty notice u/s 271 (1)( b ) of the
Act two times for all the years under consideration, i.e., the fist notice was issued
on 7.12.2010 and the second notice was issued on 27.12.2010. Subsequently,
the AO levied a penalty of Rs.50,000/- for each of the years under consideration.
Before Ld CIT(A), the assessee contended that the penalty proceedings u/s
271(1)(b) of the Act was initiated by the AO for non-compliance of the notices
dated 6.10.2010 and 11.11.2010 issued to the Assessee. Attention of the Ld
CIT(A) was invited to the last page of the assessment order, wherein the above
mentioned fact was stated by the assessing officer. The Ld CIT(A) noticed that
the maximum amount of penalty prescribed u/s 271(1)(b) for non-compliance of
notice issued by the AO was Rs.10,000/-. Since the AO has levied the impugned
penalty in respect of two notices only, the ld. CIT(A) reduced the amount of
penalty to Rs.20,000/- per year.      Still aggrieved, the assessee has filed these
appeals before us.

4.     During the course of hearing, the ld. Counsel appearing for the Assessee
submitted that the Assessing Officer has levied identical penalty of Rs.50,000/- in
the case of Assessee's wife Smt. Hema Rakeshkumar M Gupta also. The Ld
CIT(A) reduced the penalty amount to Rs.20,000/- per year and in further appeal
filed before the ITAT, the Tribunal has deleted the penalty in all the years. The
ld. Counsel for the Assessee submitted that the facts and circumstances
prevailing in the instant case, i.e., the date of notices, the details of compliance
with the said notices are identical with the facts that prevailed in the case
Smt.Hema Rakeshkumar M Gupta.             The ld. Counsel for the Assessee also
furnished a copy of the order dated 27.8.2014 passed by the Tribunal in ITA
No.381 to 385/Mum/2013 in Hema Rameshkumar M Gupta V/s ITO (AYs 2003-
04 to 2006-07 and 2008-09). The ld. DR also confirmed that the facts and the
details of notices etc are identical in both the cases.

5.     We have heard the rival contentions and carefully perused the record.
We notice that the Ld CIT(A) has confirmed the penalty to the extent of
Rs.20,000/- for failure to comply with the notices issued by the assessing officer
on 06.10.2010 and 11.11.2010. The notice dated 6.10.2010 is the notice issued
                                         3             I.T.A. Nos.371 to 374/ Mum/2013



u/s 143(2) of the Act and the notice dated 11.11.2010 is the notice           issued
seeking certain details from the assessee. The assessee did not respond to the
notice issued on 06.10.2010.     However, in response to the notice issued on
11.11.2010, the assessee had filed certain details.

6.    It is pertinent to note that the AO had already issued a notice earlier u/s
143(2) of the Act, i.e., the said notice was dated 24.9.2010. In the cae of Mrs.
Hema Rakesh Kumar M Gupta (supra) also, the assessing officer had issued two
notices u/s 143(2) of the Act and levied penalty u/s 271(1)(b) of the Act in respect
of the second notice, to which the assessee therein did not respond. The Co-
ordinate Bench of the Tribunal, in the case of Mrs. Hema Rakeshkumar M
Gupta (supra), has appreciated the factual position discussed above and
expressed the view that there was no necessity for issuing a fresh notice dated
6.10.2010 u/s 143(2) of the Act second time, when the effect of first notice was
still live requiring compliance by the assessee. Accordingly, the Tribunal has
expressed the view that there is no case for levying penalty for non-compliance
of notice dated 6.10.2010 issued u/s 143(2) of the Act, apparently for the reason
that the said notice is superfluous in nature. Since the facts prevailing in the
instant case are identical in nature, we are inclined to adopt the same that was
expressed by the Co-ordinate bench in the case of Smt. Hema RakeshKumar M
Gupta (supra).

7.    In the case of Smt. Hema RakeshKumar M Gupta (supra) also, the
assessing officer had issued the notice u/s 142(1) on 11.11.2010. With regard to
the said notice, the Tribunal has noted that the Assessee had partially complied
with the same by filing a letter dated 19.11.2010 through "Tapal", though it was
filed belatedly on 25.11.2010. The Tribunal further noticed that the assessee had
sought time in the above said letter and the assessing officer also had granted
time in response to the same. Accordingly, the Tribunal expressed the view that
there was substantial compliance by the Assessee to the notice dated
11.11.2010 issued by the AO. Accordingly, the Tribunal expressed the view that
the Assessee is saved of penalty by a reasonable cause in terms of Section
273B of the Act.   In the instant case also, the assessee herein has filed a letter
dated 19.11.2010 through "Tapal", though it was filed belatedly on 25.11.2010. In
the said letter, the assessee had sought further time and the assessing officer
has granted time in response thereto. Hence, as per the view taken by the co-
                                         4             I.T.A. Nos.371 to 374/ Mum/2013






ordinate bench, there is substantial compliance to the notice issued by the AO on
11.11.2010. Hence, consistent with the view taken by the co-ordinate bench in
the case of Smt. Hema RakeshKumar M Gupta (supra), we also hold that there
was no necessity to levy penalty u/s 271(1)(b) of the Act, since there was a
reasonable cause in terms of sec. 273B of the Act.

8.     The facts prevailing in all the years are identical in nature and hence, for
the foregoing reasons, we set aside the order of ld. CIT(A) in all the years under
consideration and direct the AO to delete the penalty levied u/s 271(1)(b) of the
Act in all the years.

9.     In the result, all the appeals of the Assessee are allowed.

       The above order was pronounced in the open court on 29th Sept, 2014.

               th
             29 Sept, 2014    

              Sd                                     sd

     (.  /D. MANMOHAN)                       (..  ,/ B.R. BASKARAN)
         /VICE- PRESIDENT                  /ACCOUNTANT MEMBER

 Mumbai: 29th Sept,2014.

. ../ SRL , Sr. PS

        /Copy of the Order forwarded to :
1.  / The Appellant
2.       / The Respondent.
3.      () / The CIT(A)- concerned
4.       / CIT concerned
5.       ,     ,                  /
      DR, ITAT, Mumbai concerned
6.
        / Guard file.


                                                           / BY ORDER,
              True copy
                                                    (Asstt. Registrar)
                                         ,   /ITAT, Mumbai

 
 
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