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Income Tax Appellate Tribunal, KOLKATA BENCH “B” KOLKATA
Before: Shri N.V.Vasudevan & Shri Waseem Ahmed
O R D E R
PER Waseem Ahmed, Accountant Member:
- This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-21, Kolkata dated 04.05.2016. Assessment was framed by DCIT, Central Circle-XXVII, Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 28.03.2014 for assessment year 2012-13. Penalty levied by Assessing Officer u/s 271(1)(b) of the Act vide his order dated 03.09.2014. Shri Siddharth Agarwal, Ld. Advocate appeared on behalf of assessee and Shri A.K. Tiwari, Ld. Departmental Representative appeared on behalf of Revenue.
Assessee has raised following grounds:- “1. For that on the fats and in the circumstances of the case, the Ld. CIT(A) was not justified in confirming the penalty u/s 271(1)(b) of the Act.
Ratan KR. Paul Vs. DCIT, CC-XXVII, Kol Page 2 2. For that the Ld. CIT(A) ought to have deleted the entire penalty of rs.10,000/- imposed u/s 271(1)(b) since the assessee was prevented by reasonable cause for non-appearance during the course of assessment proceeding. 3. That the appellant craves leave to add, alter or delete all or any of the grounds of appeal
.”
3. 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.
4. Briefly, the facts are that the assessee is an Individual and belongs to Paul Group where a search & seizure operation was conducted u/s 132 of the Act. Therefore, the assessee was covered under the search proceedings u/s 153A of the Act. The Assessing Officer, during the course of assessment proceedings u/s 153A/143(3) of the Act issued notice u/s 142(1) of the Act but the assessee failed to comply the same. The necessary details stand as under. S.No. Date Particulars Remarks 1. 12.4.2013 Notice issued U/s 142(1) Compliance by the assessee 2. 28.10.2013 Notice issued U/s 142(1) Non-Compliance by the assessee. In this notice the hearing date was fixed on 6.11.2013 but the Reply was filed late i.e. 13.11.2013 In view of above, the AO during assessment proceedings initiated penalty proceedings u/s 271(1)(b) of the Act. Finally, the AO after considering the reply of the assessee imposed the penalty for Rs.10,000/- for the default committed by the assessee as discussed above.
5. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before ld. CIT(A) submitted that the health condition of one of the partner of the firm was very critical, therefore the compliances could not made. The assessee in support of its claim has also produced the copy of medical certificates. The assessee in support of its claim has also relied on the judgment of the Hon’ble Apex Court in the case of Hindustan Steel Limited v. State of Orissa reported in 83 ITR 26(SC).
Ratan KR. Paul Vs. DCIT, CC-XXVII, Kol Page 3 However, Ld. CIT(A) disregarded the contention of the assessee and confirmed the order of AO. Being aggrieved by the above finding of Ld. CIT(A), the assessee is in appeal before the Tribunal.
The ld. AR before us submitted that the identical issue in the own case of the assessee has been decided in favour of assessee by the Hon’ble Tribunal in ITA 820-824/Kol/2016 vide order dated 17-11-2017. He requested before the Bench that issue may be decided on merit. On the other hand, the ld. DR vehemently supported the order of lower authorities.
We have heard the rival contentions of both the parties and perused and carefully considered the material on record; including the judicial pronouncements cited and placed reliance upon. At the outset, it was observed that in the identical facts and circumstances in the own case of the assessee has been decided in favour of assessee by the Hon’ble Tribunal in ITA 820-824/Kol/2016 vide order dated 17-11-2017. The relevant extract of the order is reproduced below : “7. The ld. AR before us submitted that all the queries raised by the AO during assessment proceedings were duly replied by the assessee as evident from the order of AO -paragraph number 6 which reads as under:- “6.0 Further various queries were raised before the assessee on different dates, reply of which has been submitted, perused and placed on record.” Accordingly the ld AR submitted that substantial compliances were made by the assessee during the course of assessment proceedings. Therefore no penalty in the instant case is called for. The Ld AR in this regard has relied on the order of Hon’ble ITAT in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust Vs. Assistant Director of Income tax reported in 115 TTJ (Del) 419. The relevant extract reads as under:- “2.5 We also find that finally the order was passed under s. 143(3) and not under s. 144 of the Act. This means that subsequent compliance in the assessment proceedings was considered as good compliance and the defaults committed earlier were ignored by the AO. Therefore, in such circumstances, there could have been no reason to come to the conclusion that the default was willful”.
Ratan KR. Paul Vs. DCIT, CC-XXVII, Kol Page 4 On the other hand, the ld. DR submitted that the medical certificates were not produced before the AO to justify that there was reasonable cause which prevented the assessee to response the notice issued under section 142(1) of the Act. The ld. DR also contended that the assessee in the instant case was intentionally delaying the proceedings to take the assessment at the fag-end in order to divert the attention of the AO. He vehemently supported the order of lower authorities. In rejoinder, Ld AR submitted that all the medicals bills were duly produced before the Ld CIT(A) and he got co-terminus power to verify the same but he failed to do so. The Ld AR also submitted that the penalty cannot be imposed on account of technical ground. In this regard the learned AR relied on the judgment of Hon'ble Supreme Court in the case of Hindustan Steel (supra).
We have heard the rival contentions of both the parties and perused and carefully considered the material on record; including the judicial pronouncements cited and placed reliance upon. At the outset it was observed that in the identical facts and circumstances the Hon’ble Delhi Tribunal has decided the issue in favour of assessee in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust (Supra) by observing that the assessment was framed under section 143(3) of the Act which proves that substantial compliances were made by the assessee. Thus it cannot be held that the default committed by the assessee was willful. Thus, we are inclined not to uphold the order of lower authorities.
Similarly, we also find that the Hon’ble Apex Court in the case of Hindustan Steel (supra) has held that the penalty should not be imposed unless the assessee acted deliberately. The relevant extract 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.” As we have already decided the issue in favour of assessee in view of the above facts, therefore we are not inclined to comment on the contentions raised by the Ld DR at the time of hearing as well as observations made by the Ld CIT(A) in his order. Respectfully following the aforesaid judgments we reverse the order of authorities below. Accordingly, AO is directed to delete the same.
In the result, assessee’s appeal is allowed. Considering the totality of the facts of the case and in view of the order of the co-ordinate Bench of this Tribunal in assessee’s own case (supra), we are of