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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI D.T. GARASIA & SHRI O.P. MEENA
आदेश /O R D E R
PER BENCH All these appeals have been filed by different assessees against different
orders of the learned CIT(A)-3, Bhopal dated 06.10.2016 for the above assessment
years.
In all these appeals, the sole issue involved is that the learned CIT(A) has
erred in confirming the levy of penalty u/s 271(1)(b) of the I.T. Act at Rs.10,000/- in
each assessment year in the cases of all these assessees.
Briefly stated, the facts of the case are that the search in the case of the
assessee and group had taken place on 29.01.2014. After that notices were issued
by the AO u/s 142(1) of the Act dated 30.09.2015 fixing the date of hearing for
15.10.2015 to submit the required information/documents as per the
Ma Bhagwati Power P. Ltd. 3 I.T.A. Nos. 1466 to 1513 of 2016 questionnaire alongwith the books of accounts. It was specifically mentioned in
the notice that failure to comply with the notice would lead to imposition of
penalty u/s 271(1)(b) for Rs. 10,000/-. However, it was seen that on the date fixed
for hearing i.e. on 15.10.2015 no submissions were filed with regard to the
notice/questionnaire u/s 142(1) of the Act. Therefore, show cause notice for
penalty was issued by the AO to the assessee on 07.12.2015 as to why penalty
should not be levied u/s 271(1)(b) of the Act for non compliance to notice u/s
142(1) dated 15.10.2015. The date of hearing was fixed for 15.12.2015. However,
again no reply/submissions were filed by the assessee on or before the date of
hearing, Also, no reason/explanation was given by the assessee for non-
compliance on the said date. Therefore, the AO levied penalty u/s 271(1)(b) of the
Income-tax Act, 1961, for Rs. 10,000/- on 04.01.2016, for non compliance to notice
u/s 142(1) dated 15.10.2015 for each assessment year from 2008-09 to 2014-15
The ld. CIT(A) dismissed the appeals holding that the case laws relied upon
by the assessee are contradictory in nature and do not support the case of the
assessee. In this case, the assessee has not complied with the notice/questionnaire
u/s 142(1) of the Act dated 15.10.2015. It cannot be said that there was
reasonable cause with the assessee, which prevented him to comply with the
statutory notice. The assessee has deliberately tried to delay the assessment
Ma Bhagwati Power P. Ltd. 4 I.T.A. Nos. 1466 to 1513 of 2016 proceedings before the AO in order to create hindrances for the investigation. The
AO is the investigator as well as prosecutor and adjudicator in the tax assessment
proceedings. It is the duty of the assessee to facilitate the process of verification
and investigation to support its credentials. The AO is bound by law to complete
assessment proceedings as per the limitations of the Act. Deliberate delaying
tactics during the course of assessment proceedings hamper the work of the
office. The ld. CIT(A) confirmed the penalty of Rs. 10,000/- imposed by the AO u/s
271(1)(b) of the Income-tax Act, 1961, for all the present assessment years in the
case of all the assessees.
Before us, the learned Counsel for the assessees submitted that in all these
appeals, the facts and the issue involved are identical and, therefore, he will be
arguing the facts in the case of M/s. Ma Bhagwati Power P. Ltd. The AR submitted
that notice u/s 142(1) dated 30.9.2015 in all group appeals was received on
09.10.2015, to be complied on 15.10.2015, which was practically impossible to
comply with all details in short span of 7 days. However, subsequent notices dated
17.12.2015 to 24.12.2015 were duly complied and assessment was framed u/s
143(3). Further, Sheri D.S.Tiwari, AR of the assessee had verbally requested time
for filing details. Therefore, there was no delaying tactics to hamper investigation.
The learned counsel for the assessee submitted that it is held by the Delhi Bench
Ma Bhagwati Power P. Ltd. 5 I.T.A. Nos. 1466 to 1513 of 2016 of the Tribunal in the case of Akhil Bhartiya Prathmik Shmshak Sangh Bhawan
Trust vs. Assistant Director of Income Tax; (2008) 115 TTJ 419(Del) that where the
assessee had not complied with notice u/s 142(1) but assessment order was
passed u/s 143(3) and not u/s 144, that meant that subsequent compliance in
assessment proceedings was considered as good compliance and defaults
committed earlier were ignored be Assessing Officer and therefore, levy of penalty
u/s 271(1)(b) was not justified. The Learned Counsel further stated that very
recently, this Bench of Tribunal in the cases of Vinit Chouhan & others in ITA No.
1061 to 1181 has deleted the penalties on the absolute identical facts. In that case
also the notices dated 30.09.2015 were served asking the assessee to file the
details and the counsel of the assessee Shri Rajendra Sharma attended and
personally requested for the time and the Tribunal deleted the penalty on the
ground that the assessments were completed u/s 143(3) after considering all the
details submitted by the assessee and as such no penalty u/s 271(1)(b) could be
levied. He relied upon the decision in the case of Akhil Bhartiya Shiksha Sangh
Bhawan Vs ACIT 115 TTJ 419 and Parmeshwari Textiles Vs ITO 92 TTJ page 764.
On the other hand, Ld. DR relied on the orders of the Revenue Authorities
and cited some decisions of the Tribunals.
Ma Bhagwati Power P. Ltd. 6 I.T.A. Nos. 1466 to 1513 of 2016 7. We have heard the rival contentions of both the parties and have perused
the material available on record. We find that the present issue has been decided
by this very Bench in the group appeals i.e. Hemant Kumar Soni and others vide
order dated 16.1.2017. The present group appeals are also connected with the
group appeals of Hemant Kumar Soni and others. Vide above order dated
16.1.2017, we have decided the present issue in favour of the assessees. For ready
reference, we are reproducing hereunder the relevant finding recorded by us:
“7. We have heard rival contentions of both the parties and perused the material available on record. We find from the assessment orders in all these group appeals that the assessments have been completed u/ s 143(3) of the IT. Act. We find that the Assessing Officer has levied penalty 271(1)(b) for non- appearance on 15.10.2015. As per ld. Authorized Representative of the assessee, the assessees' counsel appeared and stated categorically that he appeared for seeking time. The counsel regularly attended the proceedings and the assessments have been framed u/ s 143(3) and not u/ s 144. We find that this was the first notice for compliance and since the voluminous records and papers were required to be scrutinized and individually in each case, the appropriate replies were to be filed, the assessee prayed for the time to submit the reply and ultimately submitted all the necessary replies and cooperated with the Department. We are of the view that assessees had reasonable cause for non-appearance on that day. Therefore, there is no justification for levying the penalty u/s 271(1)(b) of the Act. Secondly, in this matter, the assessments have been completed u/s 143(3) of the Act, therefore, no penalty can be levied if the assessments have been completed u/s 143(3) and there is subsequent compliances in the assessment proceedings was considered as good compliances and default committed earlier were ignored. Therefore, penalty u/s 271(1)(b) was deleted by various Tribunals. In the case of Akhil Bhartiya Parthmik
Ma Bhagwati Power P. Ltd. 7 I.T.A. Nos. 1466 to 1513 of 2016 Shmshak Sangh Bhawan Trust vs. ADIT (2008) 115 TTJ 419 (Del), it was held that where the assessee had not complied with notice u/s142(1) but assessment order was passed u/s 143(3) and not u/s 144, that meant that subsequent compliance in assessment proceedings was considered as good compliance and defaults committed earlier were ignored by the Assessing Officer, therefore, levy of penalty u/s 271(1)(b) of the Act was not justified. The case laws cited by ld. Departmental Representative are distinguishable on facts, hence, inapplicable to this case. We also noted that in the Vinit Chouhan group cases, an order is passed in a group in I.T.A.Nos. 1061 to 1181/Ind/2016 dated 23.11.2016, in which similar set of facts the penalty levied u/s 271(1)(b) was set aside. Therefore, respectfully following the said order and facts, we set aside the orders of the Revenue Authorities and delete the levy of penalty u/s 271(1)(b) of the Act in all these appeals. 8. Following our above order on the identical facts and circumstances relating
to assessees’ group, we set aside the orders of the Revenue Authorities and delete
the penalty u/s 271(1)(b) of the Act in all the present appeals.
In result, all the appeals of the assessees are allowed. The order has been pronounced in open court on the 18th January, 2017.
Sd/- Sd/- (डी.ट�.गरा�सया) (ओ.पी.मीना) �या�यक सद�य लेखा सद�य (D.T.GARASIA) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER
�दनांक /Dated : 18th January, 2017.