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Income Tax Appellate Tribunal, ‘B’ BENCH: CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI S.JAYARAMAN
PER N.R.S. GANESAN, JUDICIAL MEMBER:
Both the appeals of the assessee are directed against the respective order of the Commissioner of Income Tax (Appeals)-9, Chennai, dated 31.01.2019, and pertain to the assessment year 2015-16.
, 1500/Chny/2019 :- 2 -:
Since common issue arises for consideration in both the appeals, we heard them together and disposing of the same by this common order.
First we take up the assessee’s quantum appeal in I.T.A.No.1499/Chny/2019.
Mr.I.Dinesh, ld. Counsel for the assessee submitted that the assessee is 2. a wholesale vegetable and fruit merchant in Koyambedu Market, Chennai.
The Assessing Officer found that the total gross receipt of the assessee was Rs.1,47,99,185/-. The ld. Counsel for the assessee further submitted that out of the total receipts of Rs.1,47,99,185/-, the assessee was a consigner in respect of consignment sales to an extent of Rs.81,35,500/-. Therefore, the consignment sales to an extent of Rs.81,35,500/- cannot be included in the total turnover. This fact was not considered either by the Assessing Officer or by the ld.CIT(A). Therefore, the ld. Counsel for the assessee submitted that the matter may be remitted back to the file of Assessing Officer.
We have heard Mr.P.Muthushankar, the ld. Departmental Representative. The ld.DR also endorsed the submission of ld.AR that the receipt of Rs.81,35,500/- was on consignment sale was not brought to the notice of Assessing Officer as well as ld.CIT(A). Therefore, they have no occasion to consider the same. Hence, to bring the correct facts on record, the matter may be remitted back to the file of Assessing Officer. , 1500/Chny/2019 :- 3 -:
We have considered the rival submissions on either side and perused the relevant material available on record. This Tribunal is of the considered opinion whether the total receipt of Rs.1,47,99,185/- includes the receipt of Rs.81,35,500/- needs to be verified. Moreover, it is also to be brought on record whether the receipt of Rs.81,35,500/- was for consignment sales or not. Since these facts are not examined by the Assessing Officer, this Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer. Accordingly, the orders of both the authorities below are set aside and the entire issue raised by the assessee in this appeal is remitted back to the file of Assessing Officer. The Assessing Officer shall re-examine the matter and bring on record the factual aspects as indicated above and thereafter decide the issue in accordance with law after giving a reasonable opportunity to the assessee.
In the result, the appeal of assessee in I.T.A.No.1499/Chny/2019 is 5. allowed for statistical purposes.
Now, coming to Assessee’s penalty appeal in I.T.A.No.1500/Chny/2019, Mr.I.Dinesh, ld. Counsel for the assessee submitted that the Assessing Officer levied penalty of Rs.10,000/- u/s.271(1)(b) of the Act for non-complying of notice issued u/s.143(2) of the Act. However, the ld.CIT(A) enhanced the penalty to Rs.30,000/-, instead of Rs.10,000/-. The contention of the assessee before this Tribunal is that notice as required u/s.250(2) of the Act was not served on the assessee. Moreover, by inadvertent mistake, the , 1500/Chny/2019 :- 4 -:
assessee could not appear before the Assessing Officer in response to notice issued u/s.143(2) of the Act. Therefore, the levy of penalty for non compliance of notice issued u/s.143(2) of the Act may not be justified. The ld. Counsel for the assessee submitted that as the assessee, who is only a vegetable vendor, is not aware of the statutory obligations, therefore, he pleaded that a lenient view may be taken. We have heard Mr.P.Muthushankar, the ld. Departmental Representative.
We have considered the rival submissions on either side and perused the relevant material available on record. It is not disputed that the assessee is a vegetable vendor and the assessee could not appear before the Assessing Officer due to an advertent mistake is not in dispute.
No doubt, penalty u/s.271(1)(b) of the Act is to enforce the attendance of the assessee before the Assessing Officer. However, when the assessee, like vegetable vendors, is required to appear before the Assessing Officer by issuance of notice u/s.143(2) of the Act, the Assessing Officer is expected to take a lenient view by taking into consideration the background in which the assessee is placed. The vegetable vendor like assessee may not have any intention to evade the notice issued by the Assessing Officer. As rightly pointed out by the learned counsel for the assessee, inadvertent mistake may not attract penalty u/s.271(1)(b) of the Act. Accordingly the orders of both , 1500/Chny/2019 :- 5 -: the authorities below are set aside and penalty imposed u/s.271(1)(b) of the Act is deleted.
In the result, the appeal of assessee in I.T.A.No.1500/Chny/2019 is allowed.
To sum up the result, the quantum appeal of assessee in 9.
I.T.A.No.1499/Chny/2019 is allowed for statistical purposes allowed and the penalty appeal of assessee in I.T.A.No.1500/Chny/2019 is allowed.
Order pronounced in the open Court on the 08th November, 2019 in Chennai.