NITIN YADAV,NEW DELHI vs. ITO, NEW DELHI

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ITA 4379/DEL/2016Status: DisposedITAT Delhi26 October 2016AY 2008-093 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that the penalty under Section 271(1)(b) was not justified as the AO had not established that the notices were actually served on the assessee. The absence of proof of service rendered the penalty unsustainable.

What were the facts?

The Assessing Officer (AO) levied a penalty of Rs. 10,000 under Section 271(1)(b) for non-compliance with notices. The assessee claimed that the notices were never received, and therefore, there was no willful disobedience.

What were the issues?

Whether penalty under Section 271(1)(b) can be levied when there is no proof of service of notices on the assessee. Whether non-receipt of notices constitutes a failure to comply with the AO's directions.

Which sections of the Income-tax Act were involved?

Section 271(1)(b),Section 142(1),Section 143(2)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH ‘SMC-II’, NEW DELHI

Before: Sh. N. K. Saini

Hearing: 20.10.2016Pronounced: 26.10.2016

ORDER This is an appeal by the assessee against the order dated 26.06.2016 of ld. CIT(A)-15, Delhi.

2.

The only grievance of the assessee in this appeal relates to the confirmation of penalty levied by the AO u/s 271(1)(b) of the Income Tax Act, 1961 (hereinafter referred to as the Act).

3.

Facts of the case in brief are that the AO levied the impugned penalty by observing that the notices were issued to the assessee on various dates but there was no compliance. Accordingly, penalty of Rs.10,000/- was levied u/s 271(1)(b) of the Act.

1.

2 Nitin Yadav 4. Being aggrieved the assessee carried the matter to the ld. CIT(A) who sustained the penalty levied by the AO u/s 271(1)(b) of the Act.

5.

Now the assessee is in appeal. The ld. Counsel for the assessee submitted that no notice issued by the AO was received by the assessee and nothing is brought on record that the notice sent by Speed Post was served upon the assessee. It was further submitted that in case of the notices were not served, the AO could have taken another course to serve the notice on the assessee by issuing the same through RPAD or by affixture. The ld. Counsel for the assessee submitted that there was no malafide intention to disobey the notice issued by the department, however, the assessee could not appear because no notice was received by him. He requested for the deletion of penalty levied by the AO and sustained by the ld. CIT(A) u/s 271(1)(b) of the Act.

6.

In his rival submissions the ld. DR supported the orders of the authorities below and submitted that the assessee did not comply with the various notices issued by the AO. Therefore, penalty was rightly levied by the AO and confirmed by the ld. CIT(A) u/s 271(1)(b) of the Act.

3 Nitin Yadav 7. I 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 AO levied the penalty u/s 271(1)(b) of the Act by observing that the notices u/s 142(1)/143(2) of the Act, were issued to the assessee but nowhere he had stated that any of such notices was received by the assessee. Therefore, in the absence of such observation of the AO, the penalty u/s 271(1)(b) of the Act was not justified. Accordingly, the same is deleted.

8.

In the result, appeal of the assessee is allowed. (Order Pronounced in the Court on 26/10/2016)

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