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Income Tax Appellate Tribunal, CUTTACK BENCH CUTTACK
Before: SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM
per the Chapter XXI of the Income Tax Act, nowhere in the provisions
there is any reference regarding “service” to the assessee. Under the
provisions of Income Tax Act, where there is question of “service”,
there has been specified for service only and where there is question of
“passing”, it has been specified only to the extent of “passing”. In
Section 275 of the Act, nowhere it is mentioned that the order should
be served on the assessee within the stipulated time. The another
contention of ld. AR that the AO cannot levy penalty u/s.153(A)(1)(a)
14 ITA Nos.29&30/CTK/2014, 575&576/CTK/2013, 577&578/CTK/2013, 15/CTK/2014 And 16&17/CTK/2014 of the Act, however, on perusal of the Section 153A(1)(a), it is clear that
the AO shall issue notice u/s.153A(1)(a) of the Act to a person
requiring him to furnish return of income within such period as may be
specified in the notice. For completeness of the order, we may
reproduce the provisions of Section 153A(1)(a) of the Act, which read
as under :-
[Assessment in case of search or requisition. 153A. [(1)] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall— (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years [and for the relevant assessment year or years] referred to in clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139;
Further Section 271F of the Act empowers the AO to levy penalty
for a sum of Rs.5000/- if a person fails to file his return of income
within the stipulated time. For more clarity, we would like to
reproduce the provisions of Section 271F of the Act, which read as
under :-
[Penalty for failure to furnish return of income. 271F. If a person who is required to furnish a return of his income, as required under sub-section (1) of section 139 or by the provisos to that sub-section, fails to furnish such return before the end of the relevant assessment year, the Assessing Officer may direct that such person shall pay, by way of penalty, a sum of five thousand rupees:]
15 ITA Nos.29&30/CTK/2014, 575&576/CTK/2013, 577&578/CTK/2013, 15/CTK/2014 And 16&17/CTK/2014 [Provided that nothing contained in this section shall apply to and in relation to the return of income required to be furnished for any assessment year commencing on or after the 1st day of April, 2018.]
From the reading of the above provisions of the Act, we are of the
opinion that the contention of the assessee that the AO is not
empowered to issue notice u/s.153A(1)(a) of the Act and cannot levy
penalty u/s.271F of the Act, is not accepted as it is mandatory and no
directory. In the peculiar facts and circumstances of the case, the case
law relied on by the AR of the assessee is not applicable in the present
case. We also make it clear that the case law relied on by the AR of the
assessee relates to Section 276CC of the Act which relates to
prosecution, penalty and prosecution both are separate in nature,
which cannot be equated with.
With regard to the contention of ld. AR that there was a
reasonable cause u/s.273B of the Act for immunity provided u/s.273B
of the Act containing reasonable cause in which penalty cannot be
imposed. From the above observations and on careful perusal of the
orders of authorities below, specifically the assessment order, we find
that the assessee has been given ample opportunities of hearing and
the AO has mentioned the dates with regard to opportunity given to the
assessee to represent his case, however, the assessee has not complied
the notice issued by the AO even after issuance of reminders by the AO
16 ITA Nos.29&30/CTK/2014, 575&576/CTK/2013, 577&578/CTK/2013, 15/CTK/2014 And 16&17/CTK/2014 to the assessee, the assessee has not bothered to comply the same, which enabling the assessee to frame the assessment u/s.144 of the Act. Accordingly, the above contention of the ld. AR of the assessee that the assessee gets immunity from the provisions of Section 273B of the Act, is rejected. Thus, all the grounds raised by the assessee in its appeal for assessment year 2008-2009 are dismissed. 14. Since, the grounds raised in other appeals under consideration are similar, therefore, our observations made in the appeal of one of the assessee-Md. Mofazzalur Rahman for assessment year 2008-2009 in ITA No.29/CTK/2013, shall apply mutatis mutandis to the grounds raised in the appeals of other assessees i.e. ITA Nos.30/CTK/2014, 575&576/CTK/2013, 577&578/CTK/2013, 15/CTK/2014 and 16&17/CTK/2014. Accordingly, these appeals of the assessee are also dismissed. 15. In the result, appeals of the all the assessees are dismissed. Order pronounced in the open court on 14/10/ 2019. Sd/- Sd/- (C.M.GARG) (L.P.SAHU) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER कटक Cuttack; ददनांक Dated 14/10/2019 Prakash Kumar Mishra, Sr.P.S.
17 ITA Nos.29&30/CTK/2014, 575&576/CTK/2013, 577&578/CTK/2013, 15/CTK/2014 And 16&17/CTK/2014
आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : अऩीलाथी / The Appellant- 1.
प्रत्यथी / The Respondent- 2. आयकि आयुक्त(अऩील) / The CIT(A), 3. आयकि आयुक्त / CIT 4. ववभागीय प्रनतननधध, आयकि अऩीलीय अधधकिण, कटक / DR, ITAT, 5. Cuttack गार्ा पाईल / Guard file. 6. सत्यावऩत प्रनत //True Copy//
आदेशािुसार/ BY ORDER,
(Senior Private Secretary) आयकर अपीऱीय अधिकरण, कटक / ITAT, Cuttack