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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI RAMIT KOCHAR
This appeal is against the imposition of penalty under section 271(1)(b) of the Act.
There is a delay of 18 days in filing the present appeal. The assessee filed a petition supported by an affidavit seeking condonation of delay. After perusing the cause shown by the assessee, we are satisfied with the delay in filing the appeal is for genuine and bonafide reason. Hence, condoning the delay, we admit the appeal for hearing on merit.
Brief facts are, the assessee a partnership firm is carrying on business of trading in ink. As could be seen, in the assessment year under consideration assessee’s case was selected for scrutiny. However, as alleged by the Assessing Officer, the assessee did not respond to the notices issued under section 143(2) and 142(1). As a result, the Assessing Officer completed the assessment under section 144 of the Act. For non–compliance to the notices issued under section 3 Devrishi Corporation 143(2) / 142(1) of the Act, the Assessing Officer initiated proceeding for imposition of penalty under section 271(1)(b) by issuing a show cause notice to the assessee. As alleged by the Assessing Officer, the assessee neither appeared nor filed any explanation in response to the show cause notice, he, therefore, proceeded to pass an order imposing penalty of ` 10,000 under section 271(1)(b). Though, the assessee challenged the imposition of penalty by filing an appeal before the first appellate authority, he also confirmed the imposition of penalty.
Learned Authorised Representative submitted, the assessee for genuine reasons could not appear before the Assessing Officer in compliance to the notices issued under section 143(2) / 142(1). He submitted the Tribunal while deciding assessee’s appeal against the assessment made under section 144 of the Act, appreciating the reasons for non–appearance has restored the matter back to the file of the Assessing Officer for denovo assessment. He, therefore, submitted that the penalty imposed should be deleted.
Learned Departmental Representative on the other hand, relied upon the order of the Assessing Officer and the learned Commissioner (Appeals).
We have considered the submissions of the parties and perused the material available on record. Undisputedly, the assessment in case
4 Devrishi Corporation of assessee was completed under section 144, as the assessee did not respond to the notice under section 143(2) / 142(1) by appearing in the assessment proceedings. However, on a perusal of the order passed by the co–ordinate bench of the Tribunal in and 4896/Mum./2014, dated 8th February 2016, it is observed that the Tribunal appreciating the fact that the assessee for genuine reasons could not respond to the statutory notices issued by the Assessing Officer as they were shifting their office to a new premise restored the matter back to the file of the Assessing Officer for fresh assessment. Thus, as could be seen, there was genuine reason behind non– appearance by the assessee in response to the statutory notices issued by the Assessing Officer. That being the case, in our opinion, no penalty can be imposed under section 271(1)(b) of the Act. Accordingly, we delete the same.
In the result, appeal for A.Y. 2007–08 stands allowed. ./2014 – A.Y. 2008–09
In this appeal, the assessee has challenged the imposition of penalty under section 271(1)(c) of the Act.
There is a delay of 16 days in filing the present appeal. The assessee filed a petition supported by an affidavit seeking condonation
5 Devrishi Corporation of appeal. After perusing the cause shown by the assessee, we are satisfied that the delay in filing the appeal is for genuine and bonafide reason. Hence, condoning the delay, we admit the appeal for hearing on merit.
Brief facts are, assessment in the case of assessee for the impugned assessment year was completed under section 144 of the Act, as the assessee did not respond to the notices issued by the Assessing Officer. The assessment made was also confirmed by the learned Commissioner (Appeals). On the basis of additions made in the assessment, the Assessing Officer initiated the proceedings for imposition of penalty under section 271(1)(c). As alleged by the Assessing Officer, in response to the show cause notice issued under section 271(1)(c) r/w 274 of the Act, the assessee neither appeared nor filed any explanation. Therefore, the Assessing Officer proceeded to pass an order imposing penalty of ` 54,500 under section 271(1)(c). Being aggrieved of the penalty order so passed, the assessee preferred appeal before the learned Commissioner (Appeals) who also confirmed the same.
We have considered the submissions of the parties and perused the material available on record. It is noticed, against the order passed by the learned Commissioner (Appeals) confirming the assessment,
6 Devrishi Corporation assessee had preferred appeal before the Tribunal. The Tribunal, vide order dated 8th February 2016, in and 4896/Mum./2014, has restored the matter back to the file of the Assessing Officer for fresh assessment after due opportunity of being heard to the assessee. Therefore, since the assessment on the basis of which penalty under section 271(1)(c) was imposed, in the meanwhile, has been set aside and restored back to the file of the Assessing Officer for making fresh assessment the impugned order of the learned Commissioner (Appeals) confirming penalty under section 271(1)(c) cannot survive. Accordingly, we set aside the same and restore the matter back to the file of the Assessing Officer for initiating the proceedings under section 271(1)(c) afresh, if warranted, only after completion of fresh assessment.
In the result, appeal for A.Y. 2008–09 stands allowed for statistical purposes. Order pronounced in the open Court on 03.06.2016