SHRI DEVJIBHAI JOGIBHAI TANDEL,NANI DAMAN vs. THE INCOME TAX OFFICER,WARD-4, NANI DAMAN

This appeal filed by the assessee is directed against the order of Learned Commissioner of Income-tax (Appeals)- Valsad [in short "the CIT(A)"] dated 01.05.2015 pertaining to Assessment Year 2008-09 confirming penalty of Rs: 40,000 levied under section 271(1)b) of the Actlevied by the Income Tax Officer, Ward-4 Daman ( in short the AO)

In the grounds of appeal, the assessee has assailed the order of Id. CIT (A) in confirming the penalty of Rs. 40,000/- levied under section 271(1) (b) of the Act: 2 3. Brief facts are that the assessee has filed his return of income on 29.03.2009 declaring total income of Rs.8,54,320/- The case was reopened and assessment was completed under section 144 read with section 147 of the Act on 16.12.2011 determining total income of Rs: 34,63,222/- The notices under section 142(1) were issued on 30.06.2011,, 25.08.2011, 29.09.2011 and 13.10.2011 respectively. However, same were not complied with nor show cause notice u/s. 274 read with section 271(1) (b) was complied, without any reasonable cause for each default hence, the AO levied a penalty of Rs 10,000 for each default totaling to Rs. 40,000 under section 271(1 J(b) of the Act: 4. The assessee agitated the issue in appeal before CIT (A): Before, whom, it was contended that the AO issued notice giving time for compliance for 10 days 6 days 2 days 3 days 1 days respectively whereas the assessee was collecting the various certificate and information from land revenue authority who stated that facts that land is situated at village Jani Vankad which is at distance of more than 8 KM from Municipal Council of Daman and the population is less than 10,000 persons in the said village: However, the Id. CIT (A) viewed that reasons given by the assessee are not convincing as the notice were served upon the assessee but the assessee has choose to not give any explanation before the AO. The default is not once, but four times. Therefore, the CIT (A) confirmed the penalty levied by the AO_ 5. Being, aggrieved the assessee filed this appeal before the Tribunal: The Ld: AR: submitted that the notice under section 1 42(1 ) were issued giving very short i.e: time 10 days 6 days 2 days 3 days 1 days respectively whereas the assessee was collecting the various certificate and information from Land Revenue 3 authorities: This caused delay for noncompliance. However, the assessee has filed Paper Book on 07.09.2011 i.e: after one day of date of compliance of notice under section 14201). The Ld: AR further submitted that the AR of the assessee stays away at Surat i.e: 117 KM from Daman and the assessee was not highly educated to represent his case by himself. Further, the A.R of the assessee after getting information get ready to represents the case of the assessee within @ short period of to 3 days, which was practically impossible for any person: Therefore, it was submitted that default was merely technical which not incurred due to negligence of the assessee. The non-compliance was therefore, not intentional: The default is being merely a technical non- compliance and not intentional and the assessee may not be considered as actual habitual defaulter requiring the levy of penalty under section 271(1J(b) of the Act This view is supported by decision in the case of Swarnaben M Khanna DCIT 37 SOT 25 (Ahd) and Akhil Bhartiya Prathmik Shikshak Bhawan Trust v ADIT (2008) 115 TTJ 419 (Del) / 115 ITJ 419 (Del): 6. On the other hand, the Id: D.R: relied on the orders of lower authorities: 7. We have heard the rival submissions of both the parties and have perused the material available on record: We find that the assessee resides at Daman whereas his authorized representative is resides at Surat 117 KM away from Daman: The time given for compliance was very short i.e. 10, days ,6 days 2 days 3 days and 1 day respectively which was not possible for the assessee to make compliance through his AR. It is further noticed that the assessee was busy in collecting information from Land Revenue authorities i.e: certificate from Municipal Council regarding distance of agricultural land situated at village Jani Vankad and population of that village. This took time for making compliance: Under these circumstances, there appears reasonable cause for non-compliance of notices under section 142/1) of the Act, within such short period: Therefore, there is no justification for levying the penalty u/s 271(1Jb) of the Act: The Ld: relied in on the decision Swarnaben M: Khanna V. DCIT [2010] 132 TTJ AR has wherein it was held that mere technical non-compliance which is not (Ahd) (UO)I cannot be considered a good cause for levy of penalty under section intentional AR relied in the case of Akhil Bhartiya Prathmik 271(1)(b) of the Act. The Id: Shikshak Sangh Bhawan Trust v ADIT (2008) 115 TTJ 419 (Del) / 115 ITJ 41?Del) which also supports his case: Therefore, levy of penalty u/s 271(1Jb) of the Act not justified Thus, we set aside the orders of the Revenue Authorities and was delete the levy of penalty of Rs.40,000 /- imposed u/s 271(1Jb) of the Act.

In the result; the appeal of the assessee stands allowed: 2 j 0) 20/3 9 The order pronounced in the open Court on ) C S (O.P. MEENA) (CM: GARG) JUDICIAL MEMBER ACCOUNTANT MEMBER {G Surat, faiiv Dated: 25-71+2016 of order forwarded to- Assessee/AO/Pr: CIT / CIT (A)ITAT (DR) /Guard Copy file of ITAT: By order Assistant Registrar, Surat .