IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH `B ', NEW DELHI)
BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER
AND SHRI J. S. REDDY, ACCOUNTANT MEMBER
I.T.A. No.4815, 4816, 4817 & 4818/Del/2013
Assessment year : 2007-08, 2008-09, 2009-10 & 2010-11)
Shri Dwarkadas Daga, Vs. ACIT, CC-11,
704, Royal Street, Charmswood New Delhi
Village Surajkund, Faridabad
GIR / PAN:ADIPD6424E
(Appellant) (Respondent)
Appellant by : None
Respondent by : Shri Ravi Jain, CIT DR
Date of hearing : 14.07.2015
Date of pronouncement : 22.07.2015
ORDER
PER J. S. REDDY, AM:
These appeals by the assessee are directed against the confirmation of
penalty by Ld. CIT(A) levied u/s 271(1)(b) of the Act by the A.O. As the
issue that arises in all these appeals is the same, for the sake of convenience,
they are heard together and are being disposed of by way of this common
order.
2. None appeared on behalf of the assessee. Notices sent to them by
RPAD at the address given at Column 10 of Form36 were returned by the
postal authorities with the remarks `incomplete address'. Under these
2 ITA No.4815-18/Del/2013
circumstances, we dispose of these appeals ex-parte, qua the assessee, after
hearing Ld.CIT D.R. Shri Ravi Jain.
3. Brief facts of the case are that the assessee regularly filed return of
income was from Nagpur, Maharashtra. A search and seizure operation u/s
132 of the I. T. Act, 1961 was conducted on Shiv Vani Group on
06.01.2011. Thereafter, all the group cases were centralized with Central
Circle, New Delhi. Notices prior to centralization were given to the assessee
u/s 142(1) by the A.O. Nagpur, Maharashtra. In response, the assessee filed
return of income after centralization of group cases. The penalty u/s
271(1)(b) was levied on the assessee for non compliance to the notices. First
appellate authority deleted the penalty for two years and confirmed penalty
for four years though the A.O. had levied penalty for all the six years on the
ground of non compliance of notices. Aggrieved, the assessee is in appeal
before us.
4. After hearing Ld. D.R., we hold as follows: The Ld. A.R. of the
assessee at Nagpur and he was attending the departmental hearing at Delhi.
A perusal of the order passed u/s 153A read with Section 143(3)
demonstrates that the Ld. A.R. attended the assessment proceedings in
compliance with the notices and consequently assessment orders were
framed. Under these circumstances, the issue is, whether the penalty u/s
271(1)(b) can be sustained. In the written submissions, the assessee relied
on the decision of ITAT `G' Bench order in the case of Akhil Bhartiya
Prathmik Shikshak Sangh Bhawan Trust Vs ACIT (2008) 115 TTJ 149 as
well as a number of other decisions in the assessee's group cases where
similar penalties were deleted. Copies of these decisions are enclosed in the
paper book filed by the assessee. After perusing all these decisions, we find
3 ITA No.4815-18/Del/2013
that Delhi `E' Bench of ITAT in I.T.A.No. 4834 to 4837/Del/2013 in the
case of Natasha Garg, order dated 07.02.2014 at para 5 & 6 has held as
under:
"5. As per the penalty order paragraph I, the Assessing Officer has
mentioned that the penalty has been levied for the assessee's failure to
comply with the notices issued under Section 142(1). However, the
assessment order dated 28th March, 2013 is on record and paragraph
2 of the same reads as under:-
"2. Notice under section 143(2) issued along with notice under
section 142(1) on 18-01-2013. Sh. Kailash Jogani Chartered
Accountant & Nitesh Aggarwal, Chartered Accountant,
Authorized Representatives, attended the assessment
proceedings in compliance to notices under section 142(1) &
143(2) of the Income Tax Act, 1961 and furnished information
from time to time. The details/information produced/furnish
during the course of assessment proceedings has been
examined and placed on record. "
6. From the above, it is evident that the Assessing Officer himself in
the assessment proceedings has recorded the finding that Shri Kailash
Jogani, CA and Shri Nitesh Aggarwal, CA, authorized representatives
attended the assessment proceedings in compliance to notice issued
under Section 142(1) and 143(2). He completed the assessment at the
income returned by the assessee i.e. ~1,80,290/-. In view of the above
factual finding in the assessment order, we are of the opinion that the
assessee cannot be said to have committed the default of non-
compliance during assessment proceedings which may saddle with the
liability of penalty under Section 27l(1)(b). Accordingly, the penalty
levied under Section 27l(1)(b) for the all the years under
consideration is cancelled."
5. Similarly, in the case of Paigam Impex Private Limited Vs ACIT in
I.T.A.No. 4787 to 4791/Del/2013 order dated 06.02.2014 to which one of
the assessees is a party, at para 5, has held as follows:
4 ITA No.4815-18/Del/2013
"5. Having heard the Ld. Sf. DR and perused the material available
on record in the above-mentioned factual matrix, we are of the view
that in the facts of the present case there is nothing on record to show
that penal action was warranted as in all these years on the specific
date very little time was given by the AO to the assessee to offer
explanation. Moreover, the returned income was accepted vide order
u/s 153A r.w.s 143(3) for each of the years evident from the copies
filed. In these facts it can be safely concluded that the subsequent
compliance in assessment proceedings was considered as good
compliance and the defaults committed earlier were ignored by the
AO which are the principles laid down by the decision by the Co-
ordinate Bench in the case of Akhil Bhartiya Prathrnik Shikshak
Sangh Bhawan Trust vs ACIT (2008) 115 TTJ (Delhi) 419 relied upon
by the assessee in its Ground No-4 and which has been followed in
various orders by Co-ordinate Benches. Reference may be made to
order dated 31.01.2014 in the case of M/s Manjusha Madan vs DCIT
in ITA No-4698 to 4703/De1l2013. For ready-reference we reproduce
from the said order as under:-
"7. We have carefully considered the submissions and perused the
records. We find considerable cogency in the Ld. Counsel of the
assessee's submission that the show cause notice does not mention
about the non-compliance of notice on which penalty has been levied.
Hence, assumption of jurisdiction is not proper. We further find that
in these cases the AO has asked explanation of questions and assessee
was given only 7 days time. In these circumstances, in our considered
opinion, the assessee was not given proper opportunity and in the
same situation this tribunal in ITA No. 42391Del120I3 in the case of
Shivaansb Advertising and Publications (P) Ltd. vide its order dated
3.1.2014 has deleted the similar penalty holding as under:-
"We have heard both the sides and perused the material placed
before us. The penalty had been levied by the Assessing Officer
for non-compliance of the notice dated B.II.2010. From the
assessment order, it is evident that the notice under section
142(/)1143(2) dated B.//.20/O along with the detailed
questionnaire was issued fixing the case for IB.II.2010. These
details have been mentioned by the Assessing Officer in
paragraph 2 page I of the assessment order. Thus, total ten
5 ITA No.4815-18/Del/2013
days' time was allowed from the date of issue of the notice. In
the assessment order, the Assessing Officer has not mentioned
the date on which such notice was served upon the assessee.
Therefore, in our opinion, the time of less than ten days allowed
by the Assessing Officer for complying with the detailed
questionnaire cannot be said to be a sufficient time being
allowed to the assessee and, therefore, failure of the assessee to
comply with such notice cannot be said to be a default which
may justify the levy of penalty under section 271 (I )((b) of the
Act. Accordingly, the same is cancelled. "
8. Furthermore, we also note that assessment in this case were
completed u/s. 143(3) of the I. T. Act, it does mean the subsequent
compliance in the assessment proceedings was considered as good
compliance. The decision relied upon by the Ld. Counsel of the
assessee as above also come to the rescue of the assessee."
6. Consistent with the view taken therein, we cancel all the penalty
levied u/s 271(1)(b) to the extent it is sustained by the first appellate
authority as the assessee has cooperated and complied with the notice u/s
142(1) and 143(2) and the A.O. has passed order u/s 143(3) of the Act.
Moreover, the assessee has demonstrated that it was prevented by sufficient
cause for attending proceedings before the first appellate authority and taken
adjournments on all the earlier occasions for the reason that the counsels
were from Nagpur.
7. In the result, all the appeals of the assessee are allowed.
8. Order pronounced in the open court on 22nd July 2015.
Sd./- Sd./-
( DIVA SINGH) (J. S. REDDY)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Date: 22nd July, 2015
Sp
6 ITA No.4815-18/Del/2013
Copy forwarded to:-
1. The appellant
2. The respondent
3. The CIT
4. The CIT (A)-, New Delhi.
5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi.
True copy.
By Order
(ITAT, New Delhi).
S.No. Details Date Initials Designation
1 Draft dictated on 20/7 Sr. PS/PS
2 Draft placed before author 21 Sr. PS/PS
Draft proposed & placed before the
3 JM/AM
Second Member
Draft discussed/approved by Second
4 AM/AM
Member
5 Approved Draft comes to the Sr. PS/PS 22/7/15 Sr. PS/PS
6 Kept for pronouncement 22/7 Sr. PS/PS
7 File sent to Bench Clerk 23/7 Sr. PS/PS
Date on which the file goes to Head
8
Clerk
9 Date on which file goes to A.R.
10 Date of Dispatch of order
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