ANIL KUMAR AVASTHI,SHAHJAHANPUR vs. ITO 3(2), HARDOI, HARDOI

At the outset, Learned A. R. invited our attention to the fact that the appeal filed by the assessee is delayed by 13 days and our attention was also invited to copy of application dated 24/05/2021 for condonation of delay wherein the reason for delay in filing the appeal has been mentioned. Learned A. R. explained that the appeal could not be filed within the time for the reason that the Government had declared a lockdown owing to spread of pandemic COVID-19 and the office of the Chartered Accountant was closed. It was submitted that the assessee was prevented by reasonable and sufficient cause in not filing the appeal within the prescribed Assessment Year:2011-12 2 time therefore, the delay may be condoned and the appeal may be heard. Learned D. R. had no objection to the condonation of delay. Finding the reason plausible for delay in filing the appeal, the delay was condoned and both parties were heard.

During the course of hearing, Ld. counsel for the assessee has contended that during the course of assessment proceedings initially the assessee could not appear, but later on, assessee has appeared and filed reply to show cause notice, but Assessing Officer levied the penalty of Rs.10,000/- u/s 271(1)(b) of the Act. Ld. counsel for the assessee further contended that once the assessee has appeared before the Assessing Officer no penalty u/s 271(1)(b) of the Act should have been levied. In support of these contentions, he placed reliance upon the order of the Tribunal in the case of Akhil Bhartiya Prathmik Shikshak Vs. Asstt. Director of Income Tax reported in 115 TTJ 419 (Delhi) in which it has been held that the order was passed u/s 143(3) and not u/s 144 of the Act and the defaults committed earlier by the assessee should be ignored by the Assessing Officer, as there was good compliance in assessment proceedings. Therefore, in such circumstances there is no reason to come to the conclusion that the default was willful.

Ld. DR of the Revenue placed reliance upon the order of the CIT(A). 5. We have heard the rival submissions, carefully considered the same along with the orders of the tax authorities below. We find that the assessee has appeared before the Assessing Officer and filed a reply to show cause notice and later on the Assessing Officer has completed assessment u/s 143(3) of the Act. We have also carefully examined the order of the Tribunal in the case of Akhil Bhartiya Prathmik Shikshak (Supra), and we are of the view that whenever the assessee appeared before the Assessing Officer in subsequent proceeding and assessment has Assessment Year:2011-12 3 been completed u/s 143(3) of the Act, the default committed in earlier proceedings should be ignored and no penalty u/s 271(1)(b) of the Act should be levied. Since the assessee has appeared in subsequent proceeding and assessment order has been passed u/s 143(3) of the Act, no penalty u/s 271(1)(b) of the Act is leviable. Accordingly, we set aside the order of the CIT(A) and delete the penalty.

In the result, the appeal of the assessee is allowed.