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Income Tax Appellate Tribunal, AHMEDABAD “SMC” BENCH
Before: Ms. Annapurna Gupta & Shri TR Senthil Kumar
Appellant by : None Respondent by : Shri Kamlesh Makwana, IRS Date of hearing : 09-02-2022 Date of pronouncement : 15-02-2022 आदेश/ORDER PER : ANNAPURNA GUPTA, ACCOUNTANT MEMBER:-
The present appeal has been filed by the Assessee against the order passed by the Commissioner of Income Tax (Appeals)-4, Vadodara, (in short referred to as CIT(A)), dated 21-08-2018, u/s. 250(6) of the Income Tax Act, 1961(hereinafter referred to as the “Act”) , pertaining to Assessment Year (A.Y) 2008-09,confirming the levy of penalty u/s. 271(1)(b) of the Act .
The short issue in the present appeal is levy of penalty for non-compliance with notice issued during assessment proceedings. As per the order passed u/s. 271(1)(b) of the Act, the following notices remained uncomplied with by the assessee:
Page No 2 Bhadresh Kanchanlal Jariwala vs. ITO Sr. No Type of notice Date of issue Date of service Compliance, etc.
Notice u/s 148 23/03/2015 24/03/2015 No return filed 2. Notice u/s 142 [1] 28/08/2015 Served through Neither attended affixture nor furnished any details 3. Notice u/s 142 [1) 22/12/2015 Served through Neither attended nor affixture furnished any details 4. Notice u/s 27.01.2016 Served through Neither attended nor 271(l)(b) affixture furnished any details
In the absence of any explanation regarding non-compliance of the notices, the A.O. levied a penalty of Rs. 10,000/- u/s. 271(1)(b) of the Act. The same was confirmed by the Ld. CIT(A).
None appeared on before us on behalf of the assessee. We have noted however that submissions in writing were filed by the assessee against levy of penalty and with a request to adjudicate the issue on the basis of these written submissions only. The contents of submissions are reproduced hereunder: Submission the Hon. Bench of IT AT The C1T (A) has eared in confirming the penalty levied by Assessing officer u/s 271(l)(b) of IT Act without considering the reasons put by the appellant for not attending or complying with the notices issued by the income tax department. The appellant could not attend or comply with any of the notices and communication by the IT department as he was immigrated to USA and was totally unaware of any communication and about the notices send by the department. In support of this necessary evidences such as that he was out of the country is enclosed herewith. Moreover the address where the notices were served was however not in possession of appellant or his relatives. The notices were served through affixing on them the house which was not in possession of the appellant. Sequence of notice issued as per assessment order/ penalty order is as under:
Page No 3 Bhadresh Kanchanlal Jariwala vs. ITO Notice under Date of notice Served on Date of Remarks section appointment
148 23/03/2015 31/03/2015 You have to deliver the return of your income within 30 days from the service of notice u/s 148. No return is filed till date.
142(1) 03/08/2015 Un-served 24/08/2015 Un-served with the remarks "left" by postal authority 142(1) 28/08/2015 Served by 14/09/2015 Nobody attended nor affixture submitted any details 142(1) 22/12/2015 Served by 29/12/2015 Nobody attended affixture nor submitted any details
It may be noted that even the assessment order was not served on the appellant and it was obtained from the department when the bank account was attached. Looking the facts of the case we request to delete the penalty levied u/s 271(l)(b) in the interest of justice. In view of the small amount involved it is requested that the decision of Hon. ITAT may be taken on the basis of these written submissions and documents without any notice of hearing.
The written submissions were accompanied with copy of the passport of the assessee and the letter addressed to the Income Tax Officer by his Authorized Representative requesting to supply all orders, as mentioned in his written submissions.
A perusal of the order of the ld. CIT(A) as well as the contents of the written submissions before us reveal that the assessee had repeatedly pleaded that since he had immigrated to USA, he was totally unaware of any communication from the Page No 4 Bhadresh Kanchanlal Jariwala vs. ITO department to him. So much so that he was unaware of any assessment order being passed on him also.
To support his contention, he has filed copy of his passport which is an American passport issued to him 15th October, 2013 and copy of the Visa for Overseas Citizen of India issued by the Republic of India on 09.01.2014 with lifelong validity. Thus evidencing the fact of his having immigrated to America well before the initiation of proceedings and issuance of notices by the Income Tax Department to him in 2015. He has cemented his contention of being absent during this period in India by the fact that all these notices were served by affixture at his premises. And by also pointing out the fact that the notice issued u/s. 142(1) of the Act on 03.08.2014 remained un-served with the remarks “left” by the postal department. He has also placed a copy of the letter addressed to the Income Tax Officer referring to a notice issued by the department to the Branch Manager of the Bank u/s. 226(3) of the Act for recovery of tax dues from his bank account and has requested the Income Tax Officer to supply copy of the order, in pursuance to which the notice had been issued ,so as to enable him to file the appeal to the Ld. CIT(A).
Despite this explanation being furnished to the Ld. CIT(A) also, we find that he simply went ahead and confirmed the levy of penalty without even addressing these contentions of the assessee. He has simply brushed aside and dismissed this explanation with a cryptic remark to the effect that the submissions were not relevant to the present appeal, without pointing out how? The findings of the Ld. CIT(A) at para 3.3 of the order are as under: 3.3. I have considered the submissions of the learned Authorized Representative and the order of the Assessing Officer, during the course of assessment proceedings, the A.O. observed that assessee was not filed the return of income either before or after due date. The A.O observed that though the various notices u/s.142(1) of the Act was issued on various dates but there was a non-attendance the assessee. On going through the penalty order u/s. 271(l)(b) of the l.T. Act, it reveals that the A.O has given ample opportunities by way of issue of notices on different dates, but the assessee remained Page No 5 Bhadresh Kanchanlal Jariwala vs. ITO silent. There are many instances where the assessee has not responded to the notices of the Assessing Officer and did not bother to file adjournment letters. Even during course of appellate proceedings, notice dated 27.07.2018 was issued but the appellant has filed written submissions which are not relevant to present appeal. There is no reasonable and bonafide cause in non-attendance of a particular date of hearings before the Assessing officer. It is my considered view no to interfere the penalty order u/s. 271(1)(b) of the Act. The action of the A.O. is upheld.
Considering the smallness of the amount of the penalty levied and the explanation furnished by the assessee supported with relevant documents and taking note that the Ld. CIT(A) upheld the penalty without even considering the submissions, We are of the view that it is not a fit case for levy of penalty.
9.1. The penalty so levied u/s 271(1)(b) of the Act amounting to Rs.10,000/- is directed to be deleted. .
In effect, appeal filed by the Assessee is allowed.