AKSHAY COMMERCIAL PVT. LTD.,DELHI vs. ITO, NEW DELHI

From the above grounds, it is gathered that grievance of the assessee in all these appeals relates to the sustenance of the penalty of Rs. 10,000/- levied by the AO under Section 271(1)(b) of the Income Tax Act (hereinafter referred to as ‘the Act’) for each of the assessment years under consideration.

Facts of the case, in brief, are that a search under Section 132 of the Act was carried out in PNC group of cases at Agra. On the basis of some incriminating documents notice under Section 153(C) of the Act was issued for the assessment years 2006-07 to 2011-12 on 24.3.2014. The assessee did not file the return of income within the stipulated time therefore AO issued notice under Section 142(1) of the Act on 5.2.2015 for filing the reply till 12.2.2015. In response, the assessee did not file any reply. Therefore, the AO levied the penalty of Rs. 10,000/- for non compliance of notice under Section 142(1) of the Act for the aforesaid assessment years. 4. Being aggrieved the assessee filed the appeal before the learned CIT(A) and submitted that the return of income was filed on 16.3.2015 and the assessment had been made at nil income vide order dated 28.3.2015. It was further stated that no notice under Section 139(2) of the Act had been issued to the assessee which is mandatory for issue of notice under Section 143(1). Therefore, the notice issued under Section 142(1) without issuing of notice under Section 139(2) of the Act was invalid. 5. The learned CIT(A) after considering the submissions of the assessee observed that since the assessee did not file return in the stipulated time of 15 days and also did not file any reply to the subsequent letters issued, therefore, the AO issued notice under Section 142(1) of the Act. However, the same was not complied. The learned CIT(A) held that the AO was justified in levying the penalty under Section 271(1)(b) of the Act. 6. Now the assessee is in appeal. 7. The learned counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the AO accepted the returns of income filed by the assessee in lieu of notice under Section 153(C) of the Act and framed the assessment under Section 143(3) read with section 153(C)(A) of the Act therefore, in penalty u/s 271(1)(b) was not leviable as there was no fault of the assessee. The reliance was placed on the following case law: “Akhil Bhartiya Prathmik Shmshak Sangh Bhawan Trust vs. ADIT 115 TTJ 419 (Del).” In his rival submissions, the learned DR strongly supported the orders of the authorities below.

We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is noticed that the penalty order dated 24.3.2014 was issued to the assessee and thereafter order under Section 142(1) dated 5.2.2015 was issued. No one attended the proceedings on the date fixed in notice under Section 142(1) of the Act. However, in the body of the assessment order, the AO mentioned that the assessee in compliance to notice dated 24.3.2014 filed letter dated 2.4.2014 on 3.4.2014 and objected the jurisdiction over the case, another letter dated 26.6.2014 was again filed challenging the notice issued, which were disposed of by the AO vide letter dated 27.11.2014. So, it cannot be said that the assessee did not comply the notices issued by the AO for filing the return of income and even the AO himself admitted that the assessee filed the return of income on 16.3.2015 and thereafter the AO issued notice under Section 143(2) alongwith Section 142(1) of the Act dated 17.3.2015, in compliance to the said notices Shri. Prem Mainwal, AR of the assessee attended the proceedings from time to time these facts were mentioned by the AO at page no. 3 of the assessment order dated 28.3.2015 for the assessment year 2006-07. Therefore, in the present case, it can be said that there was no fault of the assessee inviting the levy of the penalty under Section 271(1)(b) of the Act and the learned CIT(A) without appreciating the facts in right perspective sustained the penalty levied by the AO. We, therefore, considering the totality of the facts as discussed hereinabove delete the penalty levied by the AO and sustained by the learned CIT(A) for assessment years 2006-07 to 2011-12.

In the result, appeals of the assessee are allowed.