VIJAYA SINGH,PATNA vs. ITO WARD- 6 (1), PATNA

The sole issue for our consideration is regarding the levy of penalty u/s 272A(1)(d) of the Act at Rs.40,000/-. At the outset, the ld. Counsel for the assessee stated that, admittedly the assessee failed to appear on a few occasions during the assessment proceedings but finally necessary compliance was made and assessment was framed u/s 143(3) of the Act. Placing reliance on various decisions including that of the Co-ordinate Bench of the Assessment Year: 2018-19 Vijaya Singh 2 ITAT in the case of Akhil Bhartiya Prathmik Shikshak Sangh bhawan Trust vs. ADIT reported in [2008] 115 TTJ 419 (Del.), prayer was made for deletion of the impugned penalty. The ld. D/R on the other hand vehemently argued relying on the orders of the lower authorities.

We have heard rival contentions and perused the material placed on record. We observe that due to non-compliance to the notices of hearing in the course of assessment proceedings, the ld. Assessing Officer levied penalty @ Rs.10,000/- for each non- compliance in total, Rs.40,000/- u/s 272A(1)(d) of the Act. We find that the assessment order has finally been framed u/s 143(3) of the Act. Admittedly, it is not a case of ex-parte assessment. Though, the assessee failed to comply on four occasions but finally he placed necessary documents for the completion of assessment proceedings. It thus indicates that the default for non- appearance was not wilful. We find that under similar facts and circumstances, the Co-ordinate Bench in the case of Akhil Bhartiya Prathmik Shikshak Sangh bhawan Trust vs. ADIT (supra), has held as under:- “2.5 We also find that finally the order was passed under s. 143(3) and not under s. 144 of the Act. This means that subsequent compliance in the assessment proceedings was considered as good compliance and the defaults committed earlier were ignored by the AO. Therefore, in such circumstances, there could have been no reason to come to the conclusion that the default was willful.”