SH. SUSHIL GUPTA,DELHI vs. ACIT, NEW DELHI

6270/14 2008-09 SPB 87 29/08/14 Hotels Pvt.Ltd 2. 6364/14 2008-09 Do 01/09/14 3. 6365/14 2009-12 Do 01/09/14 4. 6296/14 2006-7 Satya 01/09/14 Prakash & Brothers 5. 6297/14 2007-08 Do 01/09/14 6. 6298/14 2008-09 Do 01/09/14 7. 6386/14 2007-08 Sanjay 01/09/14 Gupta 8. 6387/14 2005-06 do 01/09/14 9. 6388/14 2006-07 do 01/09/14 10 6389/14 2007-08 do 01/09/14 11 6299/14 2008-09 Karat 87 29/08/14 Hotels Pvt.Ltd 12. 6300/14 2009-10 Do 29/08/14 13. 6414/14 2006-07 Satya 01/09/14 Realtors 14. 6415/14 2007-08 Do 01/09/14 15. 6416/14 2008-09 Do 01/09/14 16. 6417/14 2006-07 Do 01/09/14 17. 6418/14 2007-08 Do 01/09/14

6419/14 2008-09 Do 01/09/14 19. 6420/14 2005-06 Sushil 01/09/14 Gupta 20. 6421/14 2006-07 Do 01/09/14 In all the above appeals, assessee has challenged initiation of penalty proceedings against the assessee u/s 274 r.w.s. 271(1)(b) and imposition of penalty of Rs.10,000/- upon the assessee u/s 271(1)(b) as illegal and unjustified and has prayed for penalty to be deleted which have been confirmed by the Ld.CIT(A).

Brief facts of the case are as under: During the assessment proceedings assessee had failed to comply with notices under section 143(2)/142(1), issued by AO in the result of which Ld. AO passed penalty orders under section 271 (1) (b) of the Act for all the assessment years levying penalty as under:

We have perused the submissions advanced by both the sides in the light of the records placed before us and the decisions relied upon by the Ld.AR passed by this Tribunal. On perusal of all the above referred to orders passed by this Tribunal, it is observed that Mr Satya Prakash Gupta, grand father of assesses and Principal Officer of the Companies was hospitalised for treatment of heart attack, during the relevant period and he was the principal officer for all the companies/partnership firms. This Tribunal consistently held as under in all appeals tabulated above. We think it Page 6 of 10 appropriate to reproduce the relevant finding given in Para 8 of the order dated 4.11.2015 in to 6289 & 6272 to 6274/Del/2014 for the Assessment Years 2005 -06 to 2007-08 in the cases of Smt. Chandrawati Gupta, Smt. Abha Gupta & Smt. Rajani Gupta, Delhi vs. ACIT, Central Circle-12, New Delhi which reads as under. “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 also on the same footing as were in the said case in ITA 6368/Del/2014 for the A.Y. 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 the 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 hospitalised on 6.10.2012. Thereafter on the date of hearing i.e. 9.10.2012, Sh. Satya Prakash Gupta ‘head of the family’ and ‘father-in-law’ of the assessee became ill and had to be hospitalised due to heart attack. In my opinion there was a reasonable cause for non-appearance for the hearing fixed on 9.10.2012, 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 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 Year 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 4 out of 7 assessment years for which penalty was levied by the AO u/s 271(1)(b) of the Act. I, therefore, considering the totality of the facts delete the penalty levied by the AO and sustained by the Ld.CIT(A).’ 3.1. So, respectfully following the aforesaid referred to order, we are of the considered opinion that Ld. CIT (A) was not justified in confirming the penalties for other assessment years under consideration. Accordingly we are inclined to delete the penalty levied by Ld.AO under section 271(1)(b) of the Act and confirmed by the Ld.CIT(A). 4. In the result appeals filed by the assessees for the years under consideration stand allowed. Order pronounced in the open court on 28/12/2017.