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Income Tax Appellate Tribunal, ‘’ D’’ BENCH, AHMEDABAD
Before: SHRI MAHAVIR PRASAD & SHRI WASEEM AHMED
Assessee by : None Revenue by : Shri Purushottam Kumar, Sr.D.R सुनवाई क� तारीख/Date of Hearing : 04/05/2022 घोषणा क� तारीख /Date of Pronouncement: 11/05/2022 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 order of the Learned Commissioner of Income (Appeals) National Faceless Appeal Centre(NFAC) Delhi, dated 01/09/2021 arising in the matter of assessment order passed under s. 250 of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2016-17.
When the matter was called for hearing it was noticed that there was none appeared on behalf of the assessee despite the fact that case has been listed for hearing. On the previous occasion, the notice intimating the date of hearing was sent to the address of the assessee. It is the trite law that assessee after filing the appeal should be vigilant enough to prosecute the same. But, we find that the assessee is not serious in pursuing the appeal filed by it. In the absence of any co-operation from the side of the assessee, we don’t find any reason to keep the matter pending before us. Accordingly, we decided to proceed to adjudicate the appeal after hearing the learned DR appearing on behalf of the Revenue.
The assessee has raised the following grounds of appeal:
1. The ld.CIT(A) has erred in law and on facts in levying penalty of Rs.10,000/- u/s.271(1)(b) without properly appreciating the fact in as much as that the alleged non-compliance was not attributable to the assessee who has expired on 22-03-2016.
2. The penalty proceedings are submitted to be bad in law being imposed upon deceased appellant.
3. On the facts of the appellant, no such penalty ought to have been levied.
4. The appellant craves leave to add and/or amend any of the Grounds of Appeals.
4. The only issue raised by the assessee in this appeal is that Ld. CIT(A) erred in confirming the penalty order of AO u/s 271(1)(b) of the Act.
5. Briefly, the facts are that the assessee was an individual and passed away. The Assessing Officer during the course of assessment proceedings u/s 143(3) of the Act issued notices u/s 142(1)/143(2) of the Act on various dates but the assessee failed to comply the same. In view of above, the AO during assessment proceedings initiated penalty proceedings u/s 271(1)(b) of the Act. Again assessee failed to make any reply, therefore in absence of any explanation the AO imposed the penalty for Rs. 10,000/- for the defaults committed by the assessee as discussed above.
6. Aggrieved, assessee preferred an appeal before Ld. NFAC who dismissed the appeal of the assessee on the ground of delay of 414 days in filing of appeal without being sufficient cause.
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 ld. DR and perused and carefully considered the materials on record; including the grounds of appeal
. At the outset we note from the grounds of appeal that non-compliance caused due to the death of assessee as on 22-03-2016 i.e. before the issuance of notice under section 143(2). Therefore we are of the view that there was reasonable cause in non-compliance due to the death of the assessee. Hence the case of the assessee falls under the provision of section 273B of the Act. At this juncture we also find pertinent to refer the order of the Hon’ble Apex Court in the case of Hindustan Steel Limited v. State of Orissa reported in 83. ITR
26. (SC) wherein it was held that the penalty should not be imposed unless the assessee acted deliberately. The relevant extract of the judgment reads as under :
“Obligation is the result of a quasi- criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged, either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute.” 9.1 Respectfully following the aforesaid judgments and in view of the above discussion, we set aside the order of Ld. CIT(A) and direct the AO to delete the penalty. Hence, this ground of assessee’s appeal is allowed.
In the result, assessee’s appeal stands allowed.
Order pronounced in the Court on 11/05/2022 at Ahmedabad.