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Smt. Chandrawati Gupta, A-1, CC-Colony, Opp. R.P, Bagh, Delhi Vs. Asstt. Commissioner of Income tax, Central Circle-12, New Delhi
November, 06th 2015
          IN THE INCOME TAX APPELLATE TRIBUNAL
              DELHI BENCH `SMC-2', NEW DELHI
              Before Sh. N. K. Saini, Accountant Member
 ITA Nos. 6284 to 6286/Del/2014 : Asstt. Years : 2005-06 to 2007-08
Smt. Chandrawati Gupta,               Vs Asstt. Commissioner of Income
A-1, CC-Colony, Opp. R.P, Bagh,          tax, Central Circle-12,
Delhi                                    New Delhi
(APPELLANT)                              (RESPONDENT)
PAN No. AEZPC2379F

 ITA Nos. 6287 to 6289/Del/2014 : Asstt. Years : 2005-06 to 2007-08
Smt. Abha Gupta                       Vs Asstt. Commissioner of Income
A-1, CC-Colony, Opp. R.P, Bagh,          tax, Central Circle-12,
Delhi                                    New Delhi
(APPELLANT)                              (RESPONDENT)
PAN No. AERPG0334E

  ITA Nos. 6272 to 6274/Del/2014 : Asstt. Years : 2005-06 to 2007-08
Smt. Rajni Gupta                      Vs Asstt. Commissioner of Income
H.No. 11, Block-5, Roop Nagar,           tax, Central Circle-12,
Delhi-110007                             New Delhi
(APPELLANT)                              (RESPONDENT)
PAN No. AHKPG3561B
                 Assessee by : Sh. S. B. Gupta, CA
                 Revenue by : Sh. P. D. Taneja, Sr. DR
Date of Hearing : 15.10.2015         Date of Pronouncement : 04.11.2015

                                     ORDER
Per N. K. Saini, AM:

     These appeals by the assessees are directed against the
separate orders each dated 01.09.2014 in the case of Smt.
Chandrawati       Gupta        and    Smt.   Rajni    Gupta     and       dated
                                     2              ITA Nos. 6284 to 6286, 6287 to
                                                     6289 & 6272 to 6274/Del/2014
                                                 Chandrawati, Abha & Rajni Guptas

29.08.2014 in the case of Smt. Abha Gupta passed by the ld.
CIT(A)-XXXI, New Delhi.

2.    Common issues are involved in these appeals which were
heard together, so these are being disposed off by this
consolidated order for the sake of convenience and brevity.

3.    First    I   will   deal   with    the    appeal      in     ITA       No.
6284/Del/2014 for the assessment year 2005-06 in the case of
Smt. Chandrawati Gupta. Following ground has been raised in
this appeal:

     "That, on the facts and circumstances of the case, initiation
     of penalty proceedings against the assessee under section
     274 read with section 271(1)(b) and imposition of penalty of
     Rs. 10,000/- upon the assessee under section 271(1)(b) is
     illegal and unjustified and, therefore, penalty imposed should
     be deleted."

4.    Facts of the case in brief are that the assessee in response to notice
u/s 153A/153C of the Income Tax Act, 1961 (hereinafter referred to as
the Act) filed the return of income on 13.02.2012. Subsequently, notices
u/s 143(2)/142(1) of the Act were issued on 19.09.2012 fixing the case
for hearing on 09.10.2012. On the said date nobody attended, nor any
reply had been received from the assessee. The AO considered the same
as the violation of the provisions of Section 271(1)(b) of the Act.
                                     3             ITA Nos. 6284 to 6286, 6287 to
                                                    6289 & 6272 to 6274/Del/2014
                                                Chandrawati, Abha & Rajni Guptas




Accordingly, penalty notice u/s 271(1)(b) of the Act was issued to the
assessee on 29.01.2013, asking her to explain as to why penalty under
the said section may not be levied. The show cause notice was fixed for
hearing on 04.02.2013. On the said date also nobody attended, therefore,
the AO held that the assessee had no explanation for the default and
accordingly levied the penalty of Rs. 10,000/- u/s 271(1)(b) of the Act.

5.   Being aggrieved the assessee carried the matter to the ld. CIT(A)
and submitted that Mrs. Anju Gupta, sister-in-law of the assessee was
suffering from severe disease and had to be hospitalized on 06.10.2012.
Thereafter on 09.10.2012, Mr. Satya Prakash Gupta head of the family
and father-in-law of the assessee had to be hospitalized due to heart
attack and the whole family was disturbed, therefore, there was no
compliance for the notices of hearing on 09.10.2012.

6.   The ld. CIT(A) after considering the submissions of the assessee
observed that the assessee did not give any such reply before the AO.
However, he had taken note of this fact that the assessee had duly
replied to the letters of the AO on subsequent dates. The ld. CIT(A) also
observed that the assessment proceedings were time barring in nature,
therefore, the AO was in race against time, but the details required by
him had not been filed and if the AO was to get all the details at the 11th
hour, it would not be appropriate for completing the assessment.
                                     4              ITA Nos. 6284 to 6286, 6287 to
                                                     6289 & 6272 to 6274/Del/2014
                                                 Chandrawati, Abha & Rajni Guptas

According to the ld. CIT(A) the reasons given by the assessee did not
explain the total non-compliance. However, the ld. CIT(A) held that
levying the penalty for 7 years would be harsh on the assessee. He,
therefore, considered it appropriate if the penalties of Rs. 10,000/- each
only for 3 years out of the 7 assessment years involved were to be
confirmed. He accordingly confirmed the penalty to the extent of Rs.
10,000/- each for the assessment years 2005-06 to 2007-08 and deleted
the penalties for the assessment years 2008-09 to 2011-12. Now the
assessee is in appeal.

7.   During the course of hearing the ld. Counsel for the assessee at the
very outset stated that the facts of the present case are identical to the
facts involved in the case of Smt. Usha Gupta, New Delhi Vs ACIT in
ITA No. 6368/Del/2014 which has been heard on 14.10.2015. Therefore,
same course is to be adopted for these appeals. The ld. DR although
supported the orders of the ld. CIT(A) but could not controvert the
aforesaid contention of the ld. Counsel for the assessee that the facts in
the present cases are similar to the facts involved in the case of Smt.
Usha Gupta (supra).

8.   I have considered the submissions of both the parties and carefully
gone through the material available on the record. In the present case, it
is noticed that the facts are identical to the facts involved in the case of
Smt. Usha Gupta Vs ACIT (supra) and even the rival contentions are
                                   5              ITA Nos. 6284 to 6286, 6287 to
                                                   6289 & 6272 to 6274/Del/2014
                                               Chandrawati, Abha & Rajni Guptas

also on the same footing as were in the said case in ITA No.
6368/Del/2014 for the assessment year 2007-08. I have already disposed
off the above said referred to case of Smt. Usha Gupta vide the order of
even date and the relevant findings have been given in para 9 of said
order which read as under:




    "9. I have considered the submissions of both the parties and
    carefully gone through the material available on the record. In
    the present case, it appears that the AO levied the penalty for
    non-appearance of the assessee on 09.10.2012, for the said
    date notices were issued u/s 143(2)/142(1) of the Act. The
    explanation of the assessee before the ld. CIT(A) was that her
    sister-in-law Mrs. Anju Gupta was suffering from severe
    disease and had to be hospitalized on 06.10.2012. Thereafter
    on the date of hearing i.e. 09.10.2012, Sh. Satya Prakash
    Gupta "head of the family" and "father-in-law" of the
    assessee became ill and had to be hospitalized due to heart
    attack. In my opinion there was a reasonable cause for non-
    appearance for the hearing fixed on 09.10.2012, as such the
    confirmation of penalty levied by the AO u/s 271(1)(b) of the
    Act was not justified. In the present case, it appears that the
    AO levied the penalty for 7 assessment years running from
    2005-06 to 2011-12 and the ld. CIT(A) deleted the penalty for
    the 4 assessment years i.e. the assessment years 2008-09 to
    2011-12, considering the explanation of the assessee as
    plausible. However, the same explanation was not considered
    as proper for the remaining assessment years i.e. assessment
    years 2005-06 to 2007-08. In my opinion, the stand taken by
    the ld. CIT(A) was not justified particularly when he was
    satisfied that there was a proper and plausible explanation for
    the 4 out of the 7 assessment years for which penalty was
    levied by the AO u/s 271(1)(b) of the Act. I, therefore,
                                        6              ITA Nos. 6284 to 6286, 6287 to
                                                        6289 & 6272 to 6274/Del/2014
                                                    Chandrawati, Abha & Rajni Guptas

      considering the totality of the facts delete the penalty levied by
      the AO and sustained by the ld. CIT(A)."
9.      So, respectfully following the aforesaid referred to order of even
date the penalty levied by the AO and sustained by the ld. CIT(A) u/s
271(1)(b) of the Act are deleted.

10. The facts in other appeals being ITA Nos.6285 & 6286/Del/2014
in assessee's own case, ITA Nos. 6287 to 6289/Del/2014 in the case of
Smt. Abha Gupta and ITA Nos. 6272 to 6274/Del/2014 in the case of
Smt. Rajni Gupta are similar to the facts in ITA No. 6284/Del/2014,
which has been disposed off in the former part of this order and the
penalty u/s 271(1)(b) of the Act has been deleted in the said appeal.
Therefore, respectfully following the findings as aforesaid, I delete the
penalty levied u/s 271(1)(b) of the Act in all the other appeals under
consideration.

11.      In the result, all the appeals of the assessees are allowed.
 (Order Pronounced in the Court on 04/11/2015)

                                                        Sd/-
                                                    (N. K. Saini)
                                               ACCOUNTANT MEMBER
Dated: 04/11/2015
*Subodh*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5.DR: ITAT
                                                      ASSISTANT REGISTRAR

 
 
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