AMIYA PRASAD MISHRA,CUTTACK vs. ACIT, CIRCLE-2(1), CUTTACK

Shri Somanath Sahoo, AR represented on behalf of the assessee and Shri Vijay Singh, ld. CIT DR represented on behalf of the revenue.

It was submitted by the ld. AR that the assessee’s auditor has sought adjournment in respect of notices issued and admittedly, there was partial non-compliance. It is not a case of complete non-compliance. It was the submission that it was only because of the auditor being preoccupied and there was shortfall in providing the details. This is not a case of failure of the assessee to respond to the notices issued. It was prayed that the penalty as levied by the Assessing Officer and confirmed by the ld. CIT(A) may be deleted.

In reply, the ld. Sr. DR has submitted that the assessee has not produced books of account which have been found in the course of survey proceedings. This was a case of complete non-cooperation. It was the submission that the assessment order passed is ex parte. It was prayed that the penalty as levied by the Assessing Officer and confirmed by the ld. CIT(A) is liable to be upheld.

We have considered the rival submissions. A perusal of the provisions of section 271(1)(b) of the Act shows that the word used is that the assessee has ‘failed to comply with the notice’. Admittedly, in the impugned case, the assessee has not able to comply completely and there was partial failure and the assessee has provided substantial details. The assessee’s counsel had sought adjournment due to professional commitment. It cannot be said that there was a failure on the part of the assessee for levying of penalty u/s 271(1)(b) of the Act. This being so, the

In the result, the appeal of the assessee is allowed.