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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED
आदेश / O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the assessee against the appellate order of the Commissioner of Income Tax(Appeals)-10, Ahmedabad [CIT(A) in short] vide appeal no.CIT(A)- 10/ITO WD 1(3)(2)/217/15-16 dated 29/09/2016 arising in the penalty order passed under s.271(1)(b) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") dated 27/04/2015 relevant to Assessment Year (AY) 2011-12.
ITA No.3538/Ahd/2016 Lopamudra Jayendrabhai Patel vs. ITO Asst.Year –2011-12 - 2 - 2. The grounds of appeal raised by the assessee are as under:- “1. The ld. CIT(A) has erred in confirming the penalty of Rs.10,000/- levied by the Assessing Officer u/s.271(1)(b) of the Income Tax Act, 1961. 2. The Appellant craves leave to add , alter amend or modify any of the grounds of appeal on or before the date of hearing of appeal.”
The ld. Counsel for the assessee before us has filed the adjournment petition, but we dismiss the same in view of the fact that the issue involved was of small value. Hence we decided to adjudicate the appeal after hearing the ld. DR.
The only issue raised by the assessee in this appeal is that Ld. CIT(A) erred in confirming the penalty order of the AO u/s 271(1)(b) of the Act.
Briefly, the facts are that the assessee is an individual and declared her income under the head salary, house property, and other sources. The Assessing Officer during assessment proceedings framed u/s 147/144 of the Act issued notice u/s 142(1) of the Act and reminders, but the assessee failed to comply the same. The necessary details of the notice/ reminders to the assessee stand as under: Sr Date Particulars Remarks No. 1. 22.07.2013 Notice issued Non-Compliance by the U/s 142(1) assessee.
ITA No.3538/Ahd/2016 Lopamudra Jayendrabhai Patel vs. ITO Asst.Year –2011-12 - 3 -
07.04.2014 Reminders Non-Compliance by the assessee. 3. 20.6.2014 Reminder Non-Compliance by the assessee.
25.11.2014 Notice issued Non-Compliance by the U/s 142(1) assessee
12.12.2014 Reminder Compliance by the assessee
In view of above, the AO during assessment proceedings initiated penalty proceedings u/s 271(1)(b) of the Act vide letter dated 12.12.2014 and also show caused the assessee vide letter dated 05.02.2015. However, the assessee filed reply vide letter dated 11.02.2015 but again remained noncompliant on the subsequent notice issued during assessment proceedings.
Finally, the AO show caused the assessee for levying the penalty of Rs.10,000/- under section 271(1)(b) of the Act vide letter dated 19.3.2015, but there was no response from her side. Therefore the AO imposed the penalty for Rs.10,000/- for the default committed by the assessee as discussed above.
Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before the ld. CIT-A submitted that she did not receive the statutory notice issued u/s 142(1) of the Act by the AO vide letter dated
ITA No.3538/Ahd/2016 Lopamudra Jayendrabhai Patel vs. ITO Asst.Year –2011-12 - 4 - 22.07.2013. Therefore there was no compliance, but no default can be attributed on the part of the assessee on account of non-receipt of notice. However the ld. CIT-A disregarded the submission of the assessee and confirmed the order of the AO by observing as under : “4. In this case, during the course of assessment proceedings, notices u/s. 142(1) of the Act were issued to the assessee on various dates. The AO has given the details of notices issued and its non compliance in a chart which is mentioned on page no.1 of the aforesaid penalty order. The same is reproduced as under: Date Notice/letter Information called for Remarks 07.04.2014 Reminder-I For filing of return of Not complied issued by ITO income for A.Y. 2011-12 Wd.7(3), A’bad 20.06.2014 Letter issued Return of income and Not complied by ITO, details of the transaction Wd.7(3), made by you in the A’bad immovable property such as name of the purchaser/seller, sale consideration, copy of sale deed, copy or return of 25.11.2014 Notice u/s. Information called for as Not complied 142(1) r.w.s. per letter dated 20/06/2014 129 issued by issued by ITO Wd.7(3), ITO, A’bad Wd.1(3)(2), A’bad 12.12.2014 Letter issued Re-fixing hearing on Adjustment by ITO, 18/12/2014 sought vide Wd.1(3)(2), letter dated A’bad 18/12/2014 Further adjournment sought for week vide
ITA No.3538/Ahd/2016 Lopamudra Jayendrabhai Patel vs. ITO Asst.Year –2011-12 - 5 - letter dated 26/12/2014 Again adjournment sought for week vide letter dated 02/01/2015 4.1 Even after this, when the final show cause notice was issued in which it was made very clear to the appellant by the AO that non compliance of the notice would attract penal proceedings u/s.271(1)(b) f the Act, the appellant did not comply with the notice and eventually the assessment order had passed u/s 144 of the I.T. Act. This clearly shows that despite being given enough opportunities, the appellant did not bother to attend the hearings before the AO. Hence, it is a fit case for levy of penalty u/s. 271(1)(b) of the Act for non compliance of the notice. Therefore, the penalty levied by the AO is confirmed.”
Aggrieved by this, the assessee has come up in appeal before us.
The ld. DR before us vehemently supported the order of lower authorities.
We have heard the rival contentions of both the parties and perused and carefully considered the material on record. It is undisputed facts that the assessment was framed ex-parte by the AO vide order dated 19.03.2015 which shows that the assessee remained non-compliant during the assessment proceedings. In such circumstances, the Hon’ble Delhi Tribunal has decided the similar issue in the case of Akhil Bhartiya
ITA No.3538/Ahd/2016 Lopamudra Jayendrabhai Patel vs. ITO Asst.Year –2011-12 - 6 - Prathmik Shikshak Sangh Bhawan Trust Vs. Assistant Director of Income-tax reported in 115 TTJ (Del) 419 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”.
In view of the above, we note that the assessee failed to make the substantial compliances as the assessment was framed under section 144 of the Act. We also note that the assessee has remained non-compliant on several occasions as discussed above. Thus, we uphold the order of lower authorities.
In the result, assessee’s appeal stands dismissed. This Order pronounced in Open Court on 12/06/2018
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ITA No.3538/Ahd/2016 Lopamudra Jayendrabhai Patel vs. ITO Asst.Year –2011-12 - 7 -
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)-10, Ahmedabad. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy//
उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad
Date of dictation 12/06/2018. 2. Date on which the typed draft is placed before the Dictating Member …12/06/2018. 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S ……….. 5. Date on which the fair order is placed before the Dictating Member for pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Despatch of the Order…………