Heena N. Kanakia, Mumbai vs Assessee

आयकर अपीलीय अिधकरण, अिधकरण मुंबई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'H' MUMBAI सव ौी आय.पी. बंसल, याियक सदःय एवं ौी आर.सी. शमा , लेखा सदःय के सम BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI R.C.SHARMA , ACCOUNTANT MEMBER

ITA NO.5492/MUM/2013(A.Y. 2009-10)

Heena N. Kanakia, The ACIT, CC-32, 701/702, Quarter Deck, Mumbai. J.P.Road, Versova, Vs. (Respondent) Andheri (E), Mumbai 400 061 PAN:ANTPK4556B (Appellant )

Appellant by : Shri Govind Javeri Respondent by : Shri Jeetendra Kumar.

Date of hearing : 03/02/2015 Date of pronouncement : 03/02/2015

ORDER

PER I.P.BANSAL, J.M:

This is an appeal filed by the assessee and it is directed against order passed by Ld. CIT(A)-41, Mumbai dated 3/5/2013 for assessment year 2009-10. Grounds of appeal read as under:-

"1. The learned CIT(A) has erred in law and on facts in upholding the roder passed by the Assessing Officer u/s. 271(1)(b) of the Income-tax Act, 1961 which is invalid and bad in law.

2. The learned CIT(A) has erred in law and on facts in sustaining the penalty of Rs.30,000/- levied by the Assessing Officer for the alleged failure of appellant in not responding to the various notices issued by the Assessing Officer during the course of the assessment proceedings.

2 ITA NO.5492/MUM/2013(A.Y. 2009-10) 3. The learned CIT(A) has erred in law and on facts in not appreciating that there was reasonable cause for not complying with the notices issued by the Assessing Officer during the course of assessment proceedings."

2. In the present case penalty under section 271(1)(b) is levied for default of non-attendance to the various notices issued by AO, which are listed at page-2 of the order passed by Ld. CIT(A). It was submitted that for similar default of the assessee a penalty of Rs.70,000/- also imposed in respect of A.Y 2004-05 to 2007-08 and Tribunal after considering the submissions of both the parties has arrived at a conclusion that levy of penalty was saved by section 273B. For this purpose reliance has been placed on the decision of Tribunal dated 21/11/2014 in ITA Nos. 5206 to 5209/Mum/2013, copy of this order is placed at pages 9 to 15 of the paper book. In respect of A.Y 2008-09 the Tribunal has followed the aforementioned decision and reference in this regard was made to order dated 10/12/2014 passed in ITA No.5419/Mum/2013, copy of which is also filed at pages 17 to 19 of the paper book. It was further submitted that for assessment year 2003-04 also vide order dated 23/1/2015 Tribunal has deleted the penalty following earlier orders and reference was made to order passed in ITA No.5299/Mum/2013, copy of which is filed at pages 20 to 23 of the paper book.

2.1 It was submitted that for similar default on similar dates the impugned penalty has been levied and, thus, it is covered by the aforementioned decisions of the Tribunal in assessee's own case.

3. Though Ld. DR could not controvert the aforementioned arguments of Ld. AR but he relied upon order passed by AO and Ld. CIT(A).

3 ITA NO.5492/MUM/2013(A.Y. 2009-10) 4. After careful consideration to the arguments of both the parties we found that the issue is covered in favour of the assessee by the aforementioned decisions of the Tribunal in assessee's own case in respect of A.Y 2004-05 to 2008-09 and 2003-04. For the sake of completeness the relevant observations of the Tribunal from the aforementioned order dated 21/11/2014 are reproduced below:

"4.1 The stand of the assessee, right from assessment stage, is that the assessee is unable to furnish details as such details were kept at the office situated in X-Cube building, which was under dispute and seized by Civil Court, Dindoshi (Borivili Dvn.). Therefore, the assessee is unable to produce the details. Even before the ld. Commissioner of Income tax (Appeals) inspite of various difficulties, the assessee filed such details but the same were declined on the ground that the Assessing Officer had already provided sufficient opportunity to file these details. We are of the view that atleast the ld. Commissioner of Income tax (Appeals) was expected to examine these details alongwith claimed difficulties faced by the assessee and then should have reached to a conclusion. However, the ld. Commissioner of Income tax (Appeals), on the basis of observation made in the assessment order proceeded to dispose of the appeal. This claim of the assessee is even evident from para-7 (page-3) of the written submission reproduced in the impugned order. The difficulties of the assessee were analyzed and appreciated by the Tribunal as has been reproduced (supra), in its order dated 18/10/2012 wherein, the appeal was allowed for statistical purposes directing the Assessing Officer to readjudicate after providing due opportunity to the assessee.

5. The word 'reasonable cause' in section 273B must necessarily have a relation to the failure on the part of the assessee to comply with the requirement of law which he/she had failed to comply with. In case of delay in compliance, the cause shown by the assessee for such delay has to be seen whether there was a "good and sufficient cause"

for such noncompliance. If the cause shown is such as to explain the delay constitute a good reason for non-compliance, no penalty would be leviable. However, in cases where the cause shown is such which is only to mitigate the gravity of non-compliance such a cause cannot be extrapolated and treated as being a good cause. A construction which would preserve the exercise of the power in favour of the assessee, under the circumstances, which warrant it is to be preferred to a construction which would result in the likelihood of denial of relief. Reasonable cause is not susceptible of a clear and precise definition but as applied to human action which would constrain a person of average intelligence and ordinary prudence acting under normal circumstances. The assessee, being a lady, who was facing the claimed difficulties, therefore, even under the facts available on record the Assessing Officer was expected not to be so technical in imposing the penalty, more specifically when the documents, as called for, were under dispute and seized by the direction of the Court. Therefore, the assessee could not file these details. We appreciate that the ld. Commissioner of Income tax (Appeals), considering the facts, atleast gave part relief to the assessee. In the present appeals though there is a technical breach on the part of the assessee, still, keeping in view the totality of the facts and the circumstances, by taking a lenient view, the penalty 4 ITA NO.5492/MUM/2013(A.Y. 2009-10)

imposed/sustained in each case is deleted. We are observing here that our conclusion is based upon peculiar facts of the present appeals/difficulties faced by the assessee, therefore, may not be quoted as a precedent.

6. Finally, all the appeals of the assessee are allowed".

5. In view of above discussion we allow the appeal filed by the assessee and the impugned penalty is deleted.

Order pronounced in the open court on 03/02/2015 आदे श क घोषणा खुले यायालय म" #दनांकः 03/02/2015 को क गई ।

Sd/- Sd/- (आर.सी. शमा /R.C.SHARMA ) (आय.पी. बंसल / I.P. BANSAL) लेखा सदःय /ACCOUNTANT MEMBER याियक सदःय / JUDICIAL EMBER मुंबई Mumbai; #दनांक Dated 03/02/2015 आदे श क ूितिल*प अमे*षत/Copy षत of the Order forwarded to : 1. अपीलाथ- / The Appellant 2. ू.यथ- / The Respondent. 3. आयकर आयु/(अपील) / The CIT(A)- 4. आयकर आयु/ / CIT 5. *वभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai 6. गाड फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स.या*पत ूित //True Copy//

उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai व.िन.स./Vm, Sr. PS