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Income Tax Appellate Tribunal, DELHI BENCH SMC NEW DELHI
Before: SMT. DIVA SINGH
common order as the sole issue raised in each of these appeals is the correctness of the consolidated order dated 26.05.2017 of the ld. CIT(A)-29, New Delhi in the respective assessment years wherein the penalty imposed u/s 271(1)(b) by the Assessing Officer has been upheld in appeal.
On the date of hearing, an adjournment application was placed on behalf of the counsel seeking time to consolidate the appeals with other connected appeals. The record shows that request for time was made on 4th December, 2017; on which date, time was granted. Considering the to 4989/D/2017 & ITA 4990 TO 4993/D/17 Ays 2009-10 to 11-12 & 2012-13 to 2015-16 submissions of the ld. Sr. DR Mr. N.J. Singh and taking note of the fact that the appeals could be decided on the basis of material available on record, the request for time was rejected. Presence of Mr. Vijay Khatana as proxy counsel for the ld. AR was taken on record.
The record shows that penalty u/s 271(1)(b) was imposed upon the assessee in the respective years in view of the fact that on the following specific dates as set out in the penalty orders, the assessee either sought adjournment or remained unrepresented:-
Sl. Notice issued Remarks , Date of Issue Date of Hearing No. u/s 1. 142(1) 23.08.2016 01.09.2016 Adjournment application filed 2. 142(1) 14.10.2016 25.10.2016 No one Appeared 3 142(1) 17.10.2016 27.10.2016 No one Appeared 142(1) 4. 03.11.2016 10.11.2016 On 11.11.2016, part submission filed 5 271(1 )(b) No one Appeared 11.11.2016 16.11.2016 3.1 A perusal of the penalty order shows that a search and seizure operation u/s 132 of the IT Act 1961 was carried out in the case of M/s G.D.
Foods & Manufacturing Pvt. Ltd. & Others, and the case of the assessee was also covered in the said search. The assessee was consequently required to file return in response to notice u/s 153A. Thereafter, notice u/s 143(2)/142(1) along with questionnaire as per record was issued to the assessee on 13.5.2016 fixing the date of hearing as 22nd June 2016. On the said date, adjournment application was filed. As a result of further notices issued on specific dates which have been elaborated in the chart above, penalty u/s 271(1)(b) was imposed upon the assessee. to 4989/D/2017 & ITA 4990 TO 4993/D/17 Ays 2009-10 to 11-12 & 2012-13 to 2015-16 4. The assessee, in the Appellate proceedings before the CIT(A) filed its detailed submissions vide letter dated 24.5.2017 which have been extracted in para 5 from pages 2 to 7 of the impugned order. These were further supplemented by submissions contained in letter dated 25.5.2017 and also supported by an affidavit of the AR Mr. Ajai Kumar affirming the facts.
However, not convinced with the explanation, the penalty orders were upheld, leading to the filing of the present appeals.
A perusal of the explanation extracted in the impugned order shows that the assessee submitted that admittedly as per record, on two occasions, adjournment applications were filed and on one of these dates, part submissions were also filed. Accordingly, on these two dates, assessee cannot be said to be not represented. On the remaining dates, it had been argued, the Assessing Officer remained focussed on concluding the issues in M/s G.D. Foods Manufacturing India P. Ltd. as the Assessing Officer was of the view that the issues which would be thrown up from the said case would have an impact on the case of the assessee also. An affidavit of Mr. Ajai Kumar was relied upon. Mr. Ajai Kumar affirmed that as assessee’s counsel he remained present on that date, and he affirmed that he had been entrusted with the job of assisting the assessment proceedings in the case of M/s G.D. Foods Manufacturing India P. Ltd. including the case of the assessee and he was present on each of these dates. In these peculiar facts and circumstances, I am of the view that as far as the penalty imposed u/s 271(1)(b) is concerned, the default stands explained. In the facts of the present case, it is seen that once on a specific date, an adjournment to 4989/D/2017 & ITA 4990 TO 4993/D/17 Ays 2009-10 to 11-12 & 2012-13 to 2015-16 application is moved, it can, by no stretch of imagination, be said to be a case of non-compliance. Similarly, where part information is placed on record and time is sought, it again cannot be said to be a case of absenting oneself without an explanation. On the remaining dates, the assessee has consistently argued that his counsel remained present. However, the focus of the Assessing Officer remained upon the main appeals in the case of M/s G.D. Foods group in which background, it has been stated that the occasion for the assessee to remain not present through his counsel did not arise. I find that the Commissioner of Income Tax(A) though has taken note of these arguments, facts, submissions and affidavit, however, has refused to accept the explanation. In the absence of any justifiable reason for rejection of assessee’s explanation, the order cannot be upheld. Considering the submissions of the ld. Sr. DR and the submissions of the assessee as recorded in the impugned order, I find that in the absence of any good reason to the contrary, the penalty order in the peculiar facts and circumstances of the case deserves to be quashed. Ordered accordingly.
Said order was pronounced in the open Court at the time of hearing itself.
In the result, the appeals of the assessee are allowed.
Said order was pronounced in the open court on the date of hearing itself on 08 December, 2017.