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Facts
The assessee filed three appeals (ITA Nos. 83, 85, and 88) for AY 2017-18, with ITA 83 and 85 having a delay of over 82 days due to the assessee's serious ailments and her mother-in-law's accident. ITA 83 challenged a penalty u/s 272A(1)(d) for non-compliance with notices u/s 142(1), attributed to the counsel's chamber damage. ITA 85 contested a penalty u/s 271AAA, which the CIT(A) upheld, and ITA 88 was identified as a duplicate appeal.
Held
The Tribunal condoned the delay in filing appeals for ITA 83 and 85, accepting the reasons provided. For ITA 83, the penalty u/s 272A(1)(d) was set aside and cancelled, ruling that non-compliance due to an authorized representative's default should not penalize the assessee. For ITA 85, the matter was restored to the CIT(A) for fresh adjudication on merits, and ITA 88 was dismissed as withdrawn due to its duplicate nature.
Key Issues
Whether there was sufficient cause to condone the delay in filing appeals; whether penalty u/s 272A(1)(d) for non-compliance with notices u/s 142(1) was justified due to counsel's issues; and the validity of penalty u/s 271AAA and treatment of duplicate appeals.
Sections Cited
Section 115BBE, Section 272A(1)(d), Section 142(1), Section 144, Section 148, Section 271AAA
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Income Tax Appellate Tribunal, MUMBAI BENCH “F” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI SANDEEP SINGH KARHAIL
PER OM PRAKASH KANT, AM
These three appeals by the assessee are directed against separate orders of the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2017-18, interalia, relating to penalty for non- compliance of the notices and penalty in relation to the addition u/s 115BBE of the Income-tax Act, 1961 (in short ‘the Act’) respectively.
Shreeya Shirish Joshi 2 85 & 88/MUM/2024 ITA Nos. 83, 85 & 88/MUM/2024
The appeals having and 85 have been filed with a The appeals having ITA No. 83 and 85 have been filed with a The appeals having ITA No. 83 and 85 have been filed with a delay of more than 82 days. Before us, the Ld. counsel for the delay of more than 82 days. Before us, the Ld. counsel for the delay of more than 82 days. Before us, the Ld. counsel for the assessee submitted an affidavit by the assessee wherein he has ee submitted an affidavit by the assessee wherein he has ee submitted an affidavit by the assessee wherein he has submitted that his mother submitted that his mother-in-law met with an accident and suffered with an accident and suffered grievous injuries and the assessee herself suffered from serious grievous injuries and the assessee herself suffered from serious grievous injuries and the assessee herself suffered from serious ailments, thus, these e appeals could not be filed on time. Relevant could not be filed on time. Relevant part of her affidavit is reproduced as under: part of her affidavit is reproduced as under:
2-The deponent begs to inform that her mother in law aged about 84 The deponent begs to inform that her mother in law aged about 84 The deponent begs to inform that her mother in law aged about 84 years met with an accident and suffered grievious injuries and was also years met with an accident and suffered grievious injuries and was also years met with an accident and suffered grievious injuries and was also admitted in a hospital. admitted in a hospital. 3-The deponent herself suffered from a serious The deponent herself suffered from a serious ailment and consulted a ailment and consulted a Doctor on 5.9.2023 who advised her to take complete bed rest till Doctor on 5.9.2023 who advised her to take complete bed rest till Doctor on 5.9.2023 who advised her to take complete bed rest till 16.12.2023 [medical certificate enclosed]. 16.12.2023 [medical certificate enclosed]. 4-The deponent further begs to inform that she again consulted the The deponent further begs to inform that she again consulted the The deponent further begs to inform that she again consulted the Doctor on 17.12.2023 as there was only slight improveme Doctor on 17.12.2023 as there was only slight improveme Doctor on 17.12.2023 as there was only slight improvement in her condition who again advised her bed rest till 10.1.2024. condition who again advised her bed rest till 10.1.2024. 5-The deponent consulted her counsel on 4.1.2024 when she was feeling The deponent consulted her counsel on 4.1.2024 when she was feeling The deponent consulted her counsel on 4.1.2024 when she was feeling better for filing her appeal. better for filing her appeal. 6-The deponent's counsel filed the appeal on 5.1.2024, as such it is The deponent's counsel filed the appeal on 5.1.2024, as such it is The deponent's counsel filed the appeal on 5.1.2024, as such it is delayed by 82 days. delayed by 82 days. 7-The deponent prays and requests to condone the delay in filing the The deponent prays and requests to condone the delay in filing the The deponent prays and requests to condone the delay in filing the appeal as it is because of the reasonable cause. appeal as it is because of the reasonable cause.
We have heard rival submission of the parties on the issue of We have heard rival submission of the parties on the issue of We have heard rival submission of the parties on the issue of condonation of the delay in filing the appeal of the delay in filing the appeals. In our opinion, there . In our opinion, there is a sufficient and justified and justified cause on the part of the assessee cause on the part of the assessee for delay in filing the appeal delay in filing the appeals and therefore, in view of the interest of and therefore, in view of the interest of substantial justice, we condone substantial justice, we condone the delay and admit both these the delay and admit both these appeals for adjudication. appeals for adjudication.
Shreeya Shirish Joshi 3 85 & 88/MUM/2024 ITA Nos. 83, 85 & 88/MUM/2024
In the a In ITA No. 83/M/2024, the assessee is aggrieved against the ssessee is aggrieved against the penalty of Rs.50,000/ penalty of Rs.50,000/- levied by the Assessing Officer u/s levied by the Assessing Officer u/s 272A(1)(d) of the Act for five default 272A(1)(d) of the Act for five defaults of compliance of notice u/s of compliance of notice u/s 142(1) of the Act. This penalty has been upheld by the Ld. CIT(A) 142(1) of the Act. This penalty has been upheld by the Ld. CIT(A) 142(1) of the Act. This penalty has been upheld by the Ld. CIT(A) observing as under:
“3. I have gone through the impugned order of the AO, assessment order, gone through the impugned order of the AO, assessment order, gone through the impugned order of the AO, assessment order, 'Statement of Facts', 'Grounds of Appeal
' and submission of the appellant. of Facts', 'Grounds of Appeal' and submission of the appellant. of Facts', 'Grounds of Appeal' and submission of the appellant. The appeal in the present case has been filed late by 56 days and the The appeal in the present case has been filed late by 56 days and the The appeal in the present case has been filed late by 56 days and the appellant has requested for condonation of delay appellant has requested for condonation of delay in filing of appeal. In in filing of appeal. In this case, the appellant failed to make compliance to notice, issued u/s this case, the appellant failed to make compliance to notice, issued u/s this case, the appellant failed to make compliance to notice, issued u/s 142(1) of the Act and, therefore, the AO initiated penalty proceedings u/s 142(1) of the Act and, therefore, the AO initiated penalty proceedings u/s 142(1) of the Act and, therefore, the AO initiated penalty proceedings u/s 272(1)(d) of the Act. The appellant failed to make compliance to six 272(1)(d) of the Act. The appellant failed to make compliance to six 272(1)(d) of the Act. The appellant failed to make compliance to six notices, issued notices, issued u/s 142(1) of the Act as also with respect to the penalty u/s 142(1) of the Act as also with respect to the penalty proceedings and to avail the opportunity, provided by the AO to explain proceedings and to avail the opportunity, provided by the AO to explain proceedings and to avail the opportunity, provided by the AO to explain her case. She failed to even submit reply to the notices, issued during the her case. She failed to even submit reply to the notices, issued during the her case. She failed to even submit reply to the notices, issued during the course of appellate proceedings. This shows casua course of appellate proceedings. This shows casual approach on her part. l approach on her part. It is noticed from the assessment order and the impugned order that It is noticed from the assessment order and the impugned order that It is noticed from the assessment order and the impugned order that notice u/s 148 of the Act was issued for the first time on 24.03.2021 and notice u/s 148 of the Act was issued for the first time on 24.03.2021 and notice u/s 148 of the Act was issued for the first time on 24.03.2021 and impugned order was passed on 21.09.2022 but she did not make impugned order was passed on 21.09.2022 but she did not make impugned order was passed on 21.09.2022 but she did not make compliance to any of the noti compliance to any of the notices, issued during the course of both the ces, issued during the course of both the proceedings. So the explanation of the appellant that delay in filing of proceedings. So the explanation of the appellant that delay in filing of proceedings. So the explanation of the appellant that delay in filing of appeal, failure to file return of income and making compliance to the appeal, failure to file return of income and making compliance to the appeal, failure to file return of income and making compliance to the show-cause penalty notices was on account of damage to chamber of her cause penalty notices was on account of damage to chamber of her cause penalty notices was on account of damage to chamber of her counsel, does not appear to be convincing and, is, therefore, not ounsel, does not appear to be convincing and, is, therefore, not ounsel, does not appear to be convincing and, is, therefore, not acceptable. Furthermore, it is the responsibility of the appellant and not Furthermore, it is the responsibility of the appellant and not Furthermore, it is the responsibility of the appellant and not her counsel to ensure compliance to the legai requirements. her counsel to ensure compliance to the legai requirements. her counsel to ensure compliance to the legai requirements. There is a series of default on part of the appellant in series of default on part of the appellant in making statutory compliance, statutory compliance, as envisaged by the Income Tax Act. Considering all this, delay in filing as envisaged by the Income Tax Act. Considering all this, delay in filing as envisaged by the Income Tax Act. Considering all this, delay in filing of appeal is not condoned and the appeal is dismissed. of appeal is not condoned and the appeal is dismissed.”
5. We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. We relevant material on record. We find that the Assessing Officer has find that the Assessing Officer has levied penalty in respect of following non levied penalty in respect of following non-compliance of the notices compliance of the notices as reproduced on table on page 3 of the Assessment order: table on page 3 of the Assessment order: table on page 3 of the Assessment order:
Sr. Notice issued u/s Notice issued u/s Date of Date of Notice Served at email Notice Served at emai Status of No. issue of Compliance compliance notice 1. Notice u/s 142(1) 24.11.2021 09.12.2021 aptech@yahoo.co.in aptech@yahoo.co.in Not comply 2. Notice u/s 142(1) 17.12.2021 27.12.2021 aptech@yahoo.co.in aptech@yahoo.co.in Not comply aptech@yahoo.co.in 3. Notice u/s 142(1) 11.01.2022 18.01.2022 aptech@yahoo.co.in Not comply Shirish1912@gmail.com Shirish1912@gmail.com
Shreeya Shirish Joshi 4 85 & 88/MUM/2024 ITA Nos. 83, 85 & 88/MUM/2024 aptech@yahoo.co.in 4. Notice u/s 142(1) 04.02.2022 10.02.2022 aptech@yahoo.co.in Not comply Shirish1912@gmail.com Shirish1912@gmail.com aptech@yahoo.co.in 5. Notice u/s 142(1) 18.02.2022 25.02.2022 aptech@yahoo.co.in Not comply Shirish1912@gmail.com Shirish1912@gmail.com 5.1 Before the Ld. CIT(A) it was submitted on behalf of the Before the Ld. CIT(A) it was submitted on behalf of the Before the Ld. CIT(A) it was submitted on behalf of the assessee that due to on account of damage assessee that due to on account of damage to the chamber of her to the chamber of her counsel, the counsel could not comply to the notice u/s 142(1) of he counsel could not comply to the notice u/s 142(1) of he counsel could not comply to the notice u/s 142(1) of the Act and therefore, the ex the Act and therefore, the ex-parte order u/s 144 of the Act was rte order u/s 144 of the Act was passed by the Assessing Officer. According to the Ld. counsel for passed by the Assessing Officer. According to the Ld. counsel for passed by the Assessing Officer. According to the Ld. counsel for the assessee, there is no willful intention of avoidance there is no willful intention of avoidance there is no willful intention of avoidance of notices on the part of the assessee and therefore, no penalty should be levied. the part of the assessee and therefore, no penalty should be levied. the part of the assessee and therefore, no penalty should be levied. In our opinion, there is a justified reason on the part of the assessee here is a justified reason on the part of the assessee here is a justified reason on the part of the assessee for not complying notices. for not complying notices. We are of view that the assessee he assessee should not be penalized for any default on the part of the authorized be penalized for any default on the part of the authorized be penalized for any default on the part of the authorized representative. In the circumstances, we feel it appropriate to set representative. In the circumstances, we feel it appropriate to set representative. In the circumstances, we feel it appropriate to set aside the order of the Ld. CIT(A) and cancel de the order of the Ld. CIT(A) and cancel the penalty levied by the the penalty levied by the Assessing Officer. The appeal of the assessee is accordingly allowed. Assessing Officer. The appeal of the assessee is accordingly allowed. Assessing Officer. The appeal of the assessee is accordingly allowed.
In the assessee is aggrieved with the In ITA No. 85/Mum/2024, the assessee is aggrieved with the In ITA No. 85/Mum/2024, the assessee is aggrieved with the penalty of Rs.10,54,462/ penalty of Rs.10,54,462/- levied u/s 271AAA of the Act. levied u/s 271AAA of the Act. The said penalty levied has been upheld by the Ld. CIT(A) observing as penalty levied has been upheld by the Ld. CIT(A) observing as penalty levied has been upheld by the Ld. CIT(A) observing as under:
“3. Decision- I have gone through the impugned order of the AO, assessment order, I have gone through the impugned order of the AO, assessment order, I have gone through the impugned order of the AO, assessment order, 'Statement of Facts', 'Statement of Facts', 'Grounds of Appeal' and submission of the appellant. 'Grounds of Appeal' and submission of the appellant. The appeal in the present case has been filed late by 56 days and the The appeal in the present case has been filed late by 56 days and the The appeal in the present case has been filed late by 56 days and the appellant has requested for condonation of delay in filing of appeal. The appellant has requested for condonation of delay in filing of appeal. The appellant has requested for condonation of delay in filing of appeal. The appellant failed to make compliance to notices, issued u/s appellant failed to make compliance to notices, issued u/s appellant failed to make compliance to notices, issued u/s 142(1) of the Act, with respect to the impugned penalty proceedings and to avail the Act, with respect to the impugned penalty proceedings and to avail the Act, with respect to the impugned penalty proceedings and to avail the opportunity, provided by the AO to explain her case. She failed to even opportunity, provided by the AO to explain her case. She failed to even opportunity, provided by the AO to explain her case. She failed to even
Shreeya Shirish Joshi 5 85 & 88/MUM/2024 ITA Nos. 83, 85 & 88/MUM/2024 submit reply to the notices, issued during the course of appellate submit reply to the notices, issued during the course of appellate submit reply to the notices, issued during the course of appellate proceedings. This shows casual a proceedings. This shows casual approach on her part. It is noticed from pproach on her part. It is noticed from the assessment order and the impugned order that notice u/s 148 of the the assessment order and the impugned order that notice u/s 148 of the the assessment order and the impugned order that notice u/s 148 of the Act was issued for the first time on 24.03.2021 and impugned order was Act was issued for the first time on 24.03.2021 and impugned order was Act was issued for the first time on 24.03.2021 and impugned order was passed on 21.09.2022 but she did not make compliance to any of the passed on 21.09.2022 but she did not make compliance to any of the passed on 21.09.2022 but she did not make compliance to any of the notices, issued during the course of both the proceedings. So the , issued during the course of both the proceedings. So the , issued during the course of both the proceedings. So the explanation of the appellant that delay in filing of appeal, failure to file explanation of the appellant that delay in filing of appeal, failure to file explanation of the appellant that delay in filing of appeal, failure to file return of income and making compliance to the show return of income and making compliance to the show-cause penalty cause penalty notice was on account of damage to chamber of her couns notice was on account of damage to chamber of her couns notice was on account of damage to chamber of her counsel, does not appear to be convincing and, is, therefore, not acceptable. appear to be convincing and, is, therefore, not acceptable. Furthermore, it Furthermore, it is the responsibility of the appellant and not her counsel to ensure is the responsibility of the appellant and not her counsel to ensure is the responsibility of the appellant and not her counsel to ensure compliance to the legal requirements. compliance to the legal requirements. There is a series of default on part There is a series of default on part of the appellant in mak of the appellant in making. statutory compliance, as envisaged by the statutory compliance, as envisaged by the Income Tax Act. Considering all this, delay in filing of appeal is not Income Tax Act. Considering all this, delay in filing of appeal is not Income Tax Act. Considering all this, delay in filing of appeal is not condoned and the appeal is dismissed. condoned and the appeal is dismissed.” 6.1 Before us, the Ld. counsel for the assessee submitted that Before us, the Ld. counsel for the assessee submitted that Before us, the Ld. counsel for the assessee submitted that if the matter is restored back to ld the matter is restored back to ld CIT(A), then the assessee is willing assessee is willing to appear and explain the additions/levy of the penalty on merit to appear and explain the additions/levy of the penalty on merit to appear and explain the additions/levy of the penalty on merit ,therefore, the matter may be restored back to the file of the Ld. therefore, the matter may be restored back to the file of the Ld. therefore, the matter may be restored back to the file of the Ld. CIT(A).
6.2 We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. Since, the assessee failed to make relevant material on record. Since, the assessee failed to relevant material on record. Since, the assessee failed to compliance of notice issued by the Ld. CIT(A) due to default on the compliance of notice issued by the Ld. CIT(A) due to default on the compliance of notice issued by the Ld. CIT(A) due to default on the part of the Ld. Authorized Representative. In the interest of part of the Ld. Authorized Representative. In the interest of part of the Ld. Authorized Representative. In the interest of substantial justice, we feel it appropriate to restore the matter back we feel it appropriate to restore the matter back we feel it appropriate to restore the matter back to the file of the Ld. CIT(A) for deciding afresh after taking into to the file of the Ld. CIT(A) for deciding afresh after taking into to the file of the Ld. CIT(A) for deciding afresh after taking into consideration submission of the assessee. The grounds of appeal of consideration submission of the assessee. The grounds of appeal of consideration submission of the assessee. The grounds of appeal of the assessee are accordingly allowed for statistic the assessee are accordingly allowed for statistical purposes. al purposes.
Regarding the appeal in Regarding the appeal in Regarding the appeal in ITA No. 88/Mum/2024, we find that this appeal has not been verified properly. The Ld. counsel for the this appeal has not been verified properly. The Ld. counsel for the this appeal has not been verified properly. The Ld. counsel for the assessee submitted that this appeal is duplicate in respect of order assessee submitted that this appeal is duplicate in respect of order assessee submitted that this appeal is duplicate in respect of order
Shreeya Shirish Joshi 6 85 & 88/MUM/2024 ITA Nos. 83, 85 & 88/MUM/2024 of the Ld. CIT(A) dated 16.08.2023 which has already been of the Ld. CIT(A) dated 16.08.2023 which has of the Ld. CIT(A) dated 16.08.2023 which has considered while disposing the ITA No. 83/Mum/2024. This appeal considered while disposing the ITA No. 83/Mum/2024. This appeal considered while disposing the ITA No. 83/Mum/2024. This appeal being duplicate, the Ld. Counsel the Ld. Counsel for the assessee sought to the assessee sought to withdraw the appeal. Accordingly, this appeal is dismissed as the appeal. Accordingly, this appeal is dismissed as the appeal. Accordingly, this appeal is dismissed as withdrawn.
In the result, the appeal in In the result, the appeal in ITA No. 83/Mum/2024 is allowed um/2024 is allowed ,appeal of the assessee appeal of the assessee in ITA No. 85/Mum/2024 is allowed for in ITA No. 85/Mum/2024 is allowed for statistical purposes and appeal in IT stical purposes and appeal in A No. 88/Mum/2024 is dismissed.