Heena N Kanakia, 701/702, Quarter Deck, J P Road, Versova, Andheri (West), Mumbai -400 061 Vs. ACIT, CC-32, Mumbai
January, 27th 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCH "H", MUMBAI
. . ,
BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER
AND SHRI VIVEK VARMA, JUDICIAL MEMBER
ITA No. : 5299/Mum/2013
(Assessment year: 2003-04)
Heena N Kanakia, Vs ACIT, CC-32,
701/702, Quarter Deck, Mumbai
J P Road, Versova,
Mumbai -400 061
.:PAN: ANTPK 4556 B
(Appellant) × (Respondent)
Appellant by Shri Govind Javeri
Respondent by Shri Jeetendra Kumar
/Date of Hearing : 06-01-2015
/Date of Pronouncement : 23-01-2015
PER VIVEK VARMA, JM:
The appeal filed by the assessee against the order of
CIT(A)-41, Mumbai, dated 03.05.2013, sustaining the penalty
levied at Rs 70,000/- u/s 271(1)(b) of the Income Tax Act, 1961.
2. At the time of hearing, the AR submitted that the assessee
was unable to furnish complete details as called for by the AO
"6. Being aggrieved by the penalty order passed by the
Assessing Officer the appellant has preferred the current appeal
before your honour.
7. It is submitted that during the course of the assessment
proceedings the appellant had made aware the Assessing
Officer about her inability to furnish the details called for due to
various difficulties faced by her. The said documents
Heena N Kanakia
substantiating difficulties had been filed before Your Honour
predecessor during the appellate proceeding for AY 2008-09
while making submissions in appeal filed against the
8. The Assessing Officer was well intimated during the
assessment proceedings itself that the details called for by the
Assessing Officer were kept at office situated in X-cube building
which was under the dispute and seized by Civil Court Dindoshi
(Borivali Division). Therefore, the appellant could not produce or
file the details before the Assessing Officer. The appellant craves
leave to refer to and rely upon the said documents filed during
the cot4rse of appellate proceedings for A. Y.2008-09 and not re-
submitting the same now so as to not to burden the record.
However, if Your Honour seeks such details, the appellant may
kindly be accordin1 intimated so that the same can be filed
separately. 9. It is submitted that the appellant had been relying
on her husband and in laws in respect of compliances of tax
matters and she is not well aware about the intricacies involved.
It is submitted that her husband and in laws had been getting
through various difficulties, passing through very difficult phase
and as such, could not attend to the various notices issued by
the Assessing Officer. In spite of all odds, they could manage to
make partial compliances to the best of their ability as it/s
evident from the details given by the Assessing Officer in the
(as extracted from the order of the CIT(A))
3. The AR further submitted that on those facts only, the
ITAT in assessee's own cases in assessment years 2004-05 to
2007-08, in ITAs no. 5206 to 5209/Mum/2013, held,
"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
Divn.). Therefore, the assessee is unable to produce the details.
Even before the id. 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 id. Commissioner of Income
tax (Appeals) was expected to examine these details along with
c1aned 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 the assessee were analyzed and appreciated by
the Tribunal as has been reproduced (supra), in its order dated
18/10 20 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
Heena N Kanakia
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 Id.
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 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".
4. Since the penalty has been deleted by the ITAT on same
and identical facts, we are of the opinion that in the present case
as well, penalty deserves to be deleted.
5. We, therefore, set aside the order of the CIT(A) and direct
the AO to cancel the penalty of Rs. 70,000/- levied u/s 271(1)(b).
6. In the result, the appeal as filed by the assessee is
Order pronounced in the open Court on 23rd January, 2015.
(. . ) ( )
(R C SHARMA) (VIVEK VARMA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Date: 23rd January, 2015
Heena N Kanakia
1) /The Appellant.
2) × /The Respondent.
3) The CIT(A)-41, Mumbai.
4) The CIT Central -III, Mumbai.
5) "", , /
The D.R. "H" Bench, Mumbai.
Copy to Guard File.
/ / True Copy / /