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Income Tax Appellate Tribunal, MUMBAI BENCH “C”, MUMBAI
Before: SHRI R.C.SHARMA & SHRI PAWAN SINGH
O R D E R
PER PAWAN SINGH, JM:
The present appeal is filed by the assessee against the order of CIT(A) dated 20/12/2010,confirming the order of penalty order passed by Assessing Officer (AO) u/s 271(1)(b) of the Act on the following grounds of appeal: 1 :
0. Levy of penalty of Rs. 40,000/- u/s. 271 (1) (b) of the Income-tax Act, 1961: 1 :
1. The Commissioner of Income-tax (Appeals) has erred in upholding the action of the Assessing Officer in levying a penalty u/s. 271 (1) (b) of the Income-tax Act, 1961 on the Appellant.
1 : 2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject there was no non-compliance attracting the provisions of section 271 (1) (b) of the Income-tax Act, 1961 and hence the levy of penalty was incorrect and illegal and the Commissioner of Income-tax (Appeals) ought to have held as such. 1 : 3 The Appellant submits that the impugned Order levying penalty u/s. 271(1) (b) of the Income-tax Act, 1961 be struck down. 2 : 0 Re.: General: 2 : 1 The Appellant craves leave to add, alter, amend and/or substitute all or any of the foregoing grounds of appeal at or before the hearing of the appeal.
2. The brief fact of the case are that the assessment order was pending before the AO/ADIT (IT), range-4, Mumbai who served a notice u/s 143(2) on the assessee on 21.08.2009 and u/s 142(1) on 21.08.2009 for fixing the date of hearing on 17.07.2009 and subsequently the case was adjourned for 24.09.2009 and for 04.01.2010 , a show cause notice u/s 274 r.w.s. 271(1)(b) was issued to the assessee , which reveals that despite the service of notice u/s 143(2) and 142(1), the assessee failed to comply with the term and queries raised in the notices and assessee seek adjournment on the date fixed and thus failed to comply the term of the said notice and only adjournment was seek after the date of hearing and the person who was requesting for adjournment has not mentioned his name and capacity.
3. On the show cause notice ,the case was fixed on 15.01.2010, for which reply was filed by the assessee on 13.01.2010 and also filed the submissions dated 16.01.2010 and after considering the submissions the AO inflicted a penalty of Rs. 40,000/- i.e. 10,000/- for each of the default/failure vide order dated 16.11.2010 against which an appeal was filed before the CIT(A).
4. The CIT(A) while disposing of the appeal upheld the penalty in its order dated 25.10.2012 against which the present appeal is filed before us.
5. We have heard both the Authorized Representative (AR) as well as Departmental Representative (DR) of the parties and perused the material available on record.
6. The core question for our consideration is whether the late coming by the AR of the assessee on the date fixed was intentional or deliberate or was sufficiently explained in the reply of show cause notice.
7. We have seen that initially the case was fixed on 17.09.2009 at 11 p.m., however, AR of the assessee could reach only on 1.15 p.m. and explained that it was the month of September, which is the period of busy schedule for filing the Corporate Returns and the delay was sufficiently explained to the AO.
We have further seen that for the date fixed on 17th September 2009, the AO levied 8. the penalty for late attendance as well as further for non-submissions of the detail. After 17.09.2009, the case was adjourned for 24.09.2009 on that date the AR of the assessee submitted that out of 19 points/queries raised in the notice dated 21st August 2009 answers/responses to the 16 queries were submitted and for remaining the 3 questions/queries, the assessee required certain document for which time was sought which were furnished later on to the AO .
After 24/09/2009 hearing was fixed on 04.01.2010, on the said appointed date Mr. P.M. Parikh requested the adjournment orally for which he was asked to gave in writing and as per the contention of ld. AR, the AO was not available in his office and was busy in a meeting and the letter was accepted by the staff and when, on 08.01.2010 the representative of assessee sought fresh date of hearing, the AO informed that penalty notice has already been issued to them.
We have further observed from the record available before us that there was another issue in between the person ( AR) who had appeared before the AO about the proper signature, name and capacity of the person who were appearing on behalf of C.A. firm which was representing the case of assessee though we are not making any observation that the person who had to appear before AO was having a proper or duly signed authority or his capacity was mentioned in the authority letter , if there was any shortcoming in the authority letter/application, it must have been rectified and all such person must comply with the rules regarding the authorization of the parties to appear before the authorities concerned under the Act.
We have perused the record available before us and find that there was lttle delay in attending the case on 17.09.2009 and the complete details/queries were not responded on 24.09.2009, though it was not so fatal on the part of the assessee who was being represented by a well-qualified person/AR, who could not appeared on the fixed time, due to bonafide reasons, though appeared later on. It is not the case that none appeared on the date fixed. It is well known principle from various pronouncement of superior courts that opportunity of hearing must not be seems to be given but actually be given to the parties and mere technicality should not come in the way of justice delivery system by the Judicial or Quasi Judicial authority.
As per our opinion delay/non-compliance was sufficiently explained to the AO as well as to the First Appellate Authority (FAA) and we do no not find any justified reasons in inflicting/levying the penalty of Rs. 40,000/- upon the assessee, hence the order of the AO which was confirmed by the CIT(A) is set-aside and the appeal of the assessee is accepted.
In the result, the appeal filed by the assessee is allowed.
Order pronounced in the open court on this 16th December 2015.