SIDDARTHINI NANDA,NAYASARAK, CUTTACK vs. ASST. CIT(CENTRAL CIRCLE), BHUBANESWAR
What did the Tribunal hold?
The Tribunal held that the show cause notice and the Assessing Officer's satisfaction recorded in the assessment order were vague as they did not specify the particular notice issued under Section 142(1) for which the penalty was initiated. Consequently, the penalty was not sustainable.
What were the facts?
The assessees faced penalty under Section 271(1)(b) for non-compliance with assessment proceedings following a search. The assessees argued that the show cause notice and AO's satisfaction were vague, not specifying the exact notice for non-compliance.
What were the issues?
Whether the penalty levied under Section 271(1)(b) is sustainable when the show cause notice and AO's satisfaction are vague and do not specify the exact notice for non-compliance.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, CUTTACK BENCH CUTTACK
Before: SHRI GEORGE MATHAN & SHRI ARUN KHODPIA
O R D E R Per Bench : These are the appeals filed by the two different assessees against the separate orders of the ld. CIT(A)-2, Bhubaneswar, all dated 28.10.2022 for the assessment years 2010-2011 & 2011-2012, thereby confirming the penalty levied u/s.271(1)(b) of the Act. 2. Shri S.K.Sarangi, CA assisted by Intern Ms. Sugyanee Kuanr appeared for both the assessees. Shri S.C.Mohanty, Sr. DR assisted by Intern Mr. Dharmashoka Panda, appeared for the revenue.
It was submitted by the ld. AR that there was a search on the premises of the assessee on 09.12.2015. The assessee had filed writ petitions before the Hon’ble Jurisdictional High Court and the Hon’ble High Court was pleased to direct that the proceedings to be continued in respect of assessment but the final order should not be passed till the disposal of the Writ Petition before the Hon’ble High Court. It was the submission that the assessee was under the impression that the assessee had obtained a complete stay and, therefore, the assessee had not cooperated the assessment proceedings. It was further submission that the show cause notice issued by the AO and in the satisfaction recorded by the AO in the assessment order for the purpose of initiating the penalty u/s.271(1)(b) of the Act, the AO has not mentioned on the basis of failure of compliance for which notice, the penalty has been initiated. It was, thus, the prayer that as the notice has not been specifically identified the show cause notice as also the satisfaction recorded by the AO is general in nature, the penalty as levied by the AO and as confirmed by the ld. CIT(A) is liable to be deleted.
In reply, ld.Sr. DR submitted that the penalty has been levied for the violation to comply with the notice issued on 31.01.2019 as has been mentioned in the penalty order. It was the submission that it is not necessary for the AO to specify each and every violation. It was submitted that the assessee having not complied with the notices issued u/s.142(1) of the Act, the AO was well within his power to levy the penalty. It was also submitted by the ld. Sr. DR that the Hon’ble Jurisdictional High Court 3 has not granted complete stay and the interim order did not preclude the AO from completing the assessment. It only precludes the AO from passing the assessment order till disposal of Writ Petition. It was the submission that the assessment orders in the instant cases of both the assessees have been passed only after the writ petition have been disposed off. It was, thus, submitted that the penalty as levied by the AO and as confirmed by the ld. CIT(A) is liable to be upheld.
We have considered the rival submissions. A perusal of the show cause notice as also the satisfaction recorded by the AO in the assessment order, clearly does not mention the specific notice issued u/s.142(1) of the Act in respect of which non-compliance the penalty has been initiated. A perusal of the assessment order in all the cases shows multiple notices have been issued u/s.142(1) of the Act. This being so, we are of the view that the show cause notice and the satisfaction recorded by the AO in all the cases under consideration is vague. Thus, the order passed by the AO levying penalty u/s.271(1)(b) of the Act and confirming the same by the ld. CIT(A) is not sustainable in the case of both the assessees and the same stand cancelled.
In the result, appeals of both the assessees are allowed. Order dictated and pronounced in the open court on 08/02/2023. Sd/- Sd/- (अरुण खोड़पऩया) (जाजज माथन) (ARUN KHODPIA) (GEORGE MATHAN) ऱेखा सदस्य/ ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 08/02/2023 Prakash Kumar Mishra, Sr.P.S.
प्रत्यथी / The Respondent- 2.
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