GUNVANT VITTHALDAS SHAH,,SANGLI vs. INCOME-TAX OFFICER,,

The brief facts of the case as emanating from records are : The assessee is a proprietor of M/s. Swastik Oil engaged in retail trading of lubricant oil products. The Assessing Officer reopened assessments of the assessee for assessment years 2006-07 and 2007-08 by issuing notice u/s. 148 of the Act on 22-10-2007 for assessment year 2006-07 and notice dated 09-04-2008 for assessment year 2007-08. In the meantime, a survey action u/s. 133A was carried out in the business premises of the assessee on 15-11-2007. Various papers including books of account, bill books etc. were impounded from the business premises of the assessee. The Assessing Officer issued notices u/s. 142(1) of the Act for both the impugned assessment years and the same were duly served on assessee as and when issued. The assessee allegedly did not comply with the notices hence, the Assessing Officer was constrained to complete the assessment u/s. 144 of the Act. The Assessing Officer initiated penalty proceedings u/s. 271(1)(b) for non-compliance of the notices issued u/s. 142(1) of the Act. The details of notices issued by Assessing Officer for the impugned assessment years are as under : Assessment Year 2006-07 Sr. Date of issue of Date of service Date of compliance Remarks No. notice u/s. 142(1) required 1 18.06.2008 18.06.2008 08.07.2008 No compliance 2 30.07.2008 31.07.2008 11.08.2008 --do-- 3 08.09.2008 09.09.2008 18.09.2008 --do-- 4 31.10.2008 31.10.2008 10.11.2008 --do-- 5 11.11.2008 11.11.2008 21.11.2008 --do-- 6 28.11.2008 28.11.2008 02.12.2008 --do--

The notice of the appeals was issued to the assessee on 04-01-2018 for 21-02-2018. The notice was sent through RPAD on the address furnished by assessee in Form 36. None has appeared on behalf of the assessee. Therefore, we proceed on to decide the appeals on the basis of submissions made by ld. DR and the material available on record.

Dr. Vivek Agrawal representing the Department submitted that it is apparent from record that the assessee has not complied with the notices issued u/s. 142(1) of the Act repeatedly. The assessee throughout assessment proceedings was non-cooperative. The conduct of assessee shows that he is recalcitrant and has no respect for the law of land. Since, the assessee did not cooperate with Assessing Officer and failed to appear before him during assessment proceedings, the Assessing Officer had to complete the assessment u/s. 144 of the Act. The ld. DR vehemently supporting the order of Commissioner of Income Tax (Appeals) prayed for dismissing the appeals of assessee.

We have heard the submissions made by the ld. DR and have perused the orders of authorities below. A perusal of order dated 29-05-2009 for assessment year 2006-07 levying penalty u/s. 271(1)(b) reveal that the assessee had furnished an explanation for non-appearance before the Assessing Officer. The assessee has categorically stated that he had handed over all the notices to his authorized representative for compliance and he acted promptly. The authorized representative of the assessee Shri D.S. Palkar, Chartered Accountant has filed his affidavit before the Assessing Officer admitting that he had received all notices from the assessee and had appeared before the Assessing Officer. The Assessing Officer outrightly rejected the contentions of the authorized

From the submissions made by assessee before Commissioner of Income Tax (Appeals) it emerges that books of account and other documents were impounded from the business premises of assessee during survey. Though the books were in possession of Assessing Officer, the assessee and his authorized representative was required to appear before the Assessing Officer in compliance of notices issued u/s. 142(1). The assessee cannot escape from responsibility of complying with the notices by merely stating that the notices were handed over by him to authorized representative. Though the authorized representative was under obligation to appear before Assessing Officer on behalf of assessee, yet the assessee was responsible to ensure due compliance of the notices.

The Commissioner of Income Tax (Appeals) has reduced the penalty from Rs.60,000/- to Rs.50,000/- in assessment year 2006-07 and for assessment year 2007-08 the penalty has been reduced to Rs.50,000/- to Rs.40,000/- as there was compliance by assessee with respect to notice issued on 11-11-2008. Taking into consideration entirety of facts, we are of considered view that there is some element of negligence on the part of assessee in non-compliance of notice u/s. 142(1) of the Act. The ends of

In the result, the appeals of assessee are partly allowed.