M/S APEEJAY EDUCATION SOCIETY,JALANDHAR vs. DCIT, C-1 (EXEMPTIONS), CHANDIGARH

PER A.D.JAIN, VICE PRESIDENT

“1. That the learned CIT(A) fell in grave error by passing the order without giving opportunity of hearing to the assessee inspite of his request to do so.

ITA 706/CHD/2022 A.Y.2012-13 2 2. That the learned CIT(A) fell into grave error passing a non-speaking order without commenting/adjudicating on the submissions of the assessee. 3. That the learned CIT(A) fell into grave error by not passing a proper speaking order. He fell in grave error by relying oh decision of Hon'ble Apex Court which has no connection with penalty under Section 271(1)(b).

4. That the learned Commissioner of Income Tax (A)fell into grave error by confirming the penalty of Rs. 10,000/-.

2. The Assessing Officer (in short ‘the AO’), while imposing penalty in question, vide order dated 15.10.2019, observed as follows :

"Vide notice u/s 142(1) dated 30.08.2019 the assessee was asked to submit some information/documents required for reassessment proceedings for the A.Y. 2012-13 by 13.09.2019 (03:00 PM). In the same notice, the objections raised by the assessee to reopening were also disposed of and the information asked by the assessee viz. information based on which reasons were recorded was also provided to it. Instead of providing the information/documents called for and complying with notice u/s 142(1), the assessee vide letter sent-through email on 13.09.2019 (05:50 P.M.), merely stated that the annexures annexed to the notice were not signed. In response, vide letter dated 16.09.2019, the assessee was informed that the annexures were sent through post on 30.05.2019 and the scanned documents were again sent on 30.08.2019 through the official designation-based e-mail ID. Also, all the annexures were uploaded on ITBA system on 02.09.2019 using a highly secure and unique RSA token of the Assessing Officer. The assessee was told that the ITBA system and e- mail sent cannot be tampered with and therefore, these documents should be considered as valid documents and as certified true copies. The assessee was again directed to reply to notice u/s 142(1) dated 30.08.2019 by 20.09.2019. On 20.09.2019, the assessee again sent a letter making loose allegations that the documents were not part of the record earlier and asked to inspect ITBA system and e-mail system of the Assessing Officer. Vide letter dated 25.09.2019, this office gave a detailed rebuttal of the allegations made as under:

ITA 706/CHD/2022 A.Y.2012-13 3 Dear sir, Kindly refer to your letter dated 20.09.2019 and letter from this office dated 16.09.2019. It is stated that vide letter dated 16.09.2019, it was informed by the undersigned that documents i.e. annexures to reasons for reopening had already been sent through post, through e-mail and through ITBA portal. These cannot be tampered with and should be considered as certified true scanned copies. Vide letter dated 20.09.2019, the assessee has stated that inspection of file for the year under reference was carried out by your counsel and certain documents sent by you as annexure were not part of the record. These are absolutely baseless allegations. The entire assessment record for A.Y. 2012-13 was inspected by Sh. Nirmal Mahajan, CA, on 26.06.2019 in the office of the undersigned. After inspecting the record, he had requested to provide copies of only reasons for reopening and CIT approval which was provided to him. This was duly recorded in the order sheet entry dated 26.06.20^9 which was signed by him after giving a receiving. No further document was asked and no such objection/allegation was made. It is also pertinent to mention that vide notice dated 30.05.2019, the assessee was communicated the reasons for reopening and it was also mentioned in the last para that notice u/s 143(2) was enclosed and that Annexure A and Annexure B referred to in the reasons were being sent through post. In response to this, vide letter dated 03.06.2019, the assessee acknowledged the receipt of notice dated 30.05.2019 and sought inspection of file. No where the assessee raised objection that these annexures were not provided. As already mentioned, the entire assessment record was inspected on 26.06.2019 by the counsel of the assessee and the documents asked by the counsel were provided to him. No objection or discrepancy was pointed out by the counsel and the counsel did not ask for the annexures to the reasons, which shows that these were already received by the assessee. Vide letter dated 12.07.2019, the assessee filed its objections to reasons for reopening, and stated that it had not received the relevant information on which reasons for reopening were based. The objections raised by the assessee were examined and were disposed off on 30.08.2019. The assessee was also informed that the information- Annexure A and B of the reasons had been sent by post earlier. Nonetheless, the desired information was again sent as Annexure-1, Annexure-2 (Part-I and Part-II), Annexure-A and Annexure-B through e-mail on 30.08.2019 and was also uploaded on the TBA portal on 02/09/2019. The description of the information in the Annexures is as under :

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Annexure-1 Copy of computation of income for the A.Y 20120-13 duly attested by the General Secretary of the assessee which was submitted during the original assessment proceedings u/s 143(3) Annexure-2 Information received from the special auditor through e-mail dated 29.03.2019 (Part-1) and 30.03.2019 (Part-ll) Annexure-A Details of cash deposit, time deposit, investment in mutual funds Annexure-B Submission of assessee dated 12.02.2015 submitted during the original assessment proceedings u/s 143(3). Vide notice u/s 142(1) dated 30.08.2019, the assessee was asked to provide some additional information and was asked to submit the same by 13.09.2019. However, on 13.09.2019, the assessee stated that the documents were not signed by the assessee and asked for certified true copies of all the documents. This shows that the assessee acknowledged the receipt of all the documents which were sent through designation-based official e-mail ID and the ITBA system. In response to letter dated 13.09.2019 of the assessee, an e-mail as well as letter through the system was sent to the assessee stating that the designation-based e mail ID and ITBA system which is operated through a highly secure and unique RSA token cannot be tampered with and hence, the documents sent are valid documents and are certified as true scanned copies of the undersigned. The assessee was again directed to reply to notice u/s 142(1) dated 30.08.2019 by 20.09.2019 and was asked to refrain from attempting to delay the assessment proceedings. Now, again vide letter dated 20.09.2019, the assessee has raised the need to inspect the ITBA system and email folder along with its counsel and IT expert. It is strongly noted that due procedure has been followed and the principle of natural justice has been upheld by giving all the documents relied upon before forming a belief that income has escaped assessment for the A.Y. 2012-13 by reason of the failure on the part of the assessee to disclose fully and truly all material facts necessary for its assessment. The principle of natural justice requires that no information should be used against the assessee without giving it an opportunity of being heard. Through various notices, the assessee has already been given several opportunities of being heard. The assessee has already been given an opportunity to inspect the entire assessment record and the desired documents have already been provided. The assessee is directed not to create unwarranted hindrances in the assessment proceedings and to reply to the questions asked vide notice u/s 142(1) dated 30.08.2019 on or before 01.10.2019 (11:00 A.M.) positively. Although all the documents have already been given through post, e-mail and ITBA, the assessee is once again provided all the following documents, each page duly stamped and manually signed by the undersigned.

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Annexure-1 Copy of computation of income for the A.Y 2012-13 duly attested by the General Secretary of the assessee which was submitted during the original assessment proceedings u/s 143(3) Annexure-2 Information received from the special auditor through e-mail dated 29.03.2019 (Part-1) and 30.03.2019 (Part-ll) Annexure-A Details of cash deposit, time deposit, investment in mutual funds Annexure-B Submission of assessee dated 12.02.2015 submitted during the original assessment proceedings u/s 143(3).

The assessee was again asked to reply to the notice u/s 142(1) dated 30.08.2019 by 01.10.2019 (11:00 A.M.) positively. On 01.10.2019, yet again, the assessee sent a letter stating that it doubted that the emails exchanged between the AO and the special auditor (which also finds a mention in para 8 of the reasons for reopening as well) were not part of the record before recording the reasons for reopening. The assessee also made other loose and baseless allegations and demanded inspection of ITBA and e-mail system. Once again, vide letter dated 03.10.2019, the allegations were rebutted. The contents of the letter are reproduced hereunder: "Dear assessee, Kindly refer to your letter dated 01.10.2019 You seem to doubt only the e-mail received by the undersigned from the special auditors which was considered before recording reasons for reopening i.e. information received from the special auditor through e- mail dated 29.03.2019 and 30.03.2019. This information was received in response to query dated 29.03.2019 from the undersigned asking the special auditor to share any information collected/any observation made during the special audit which might have a bearing on the case for A. Y. 2012-13 as the reopening of the case was getting barred by limitation on 31.03.2019. A copy of this communication has already been provided to you. It is yet again informed to you that the aforementioned query was asked through designation based e-mail ID- Chandigarh.dcit.exmp1@incometax.gov.in on 29.03.2019 at 01:05 PM. In response, the special auditor sent a reply on 29.03.2019 at 04:56.PM and on 30.03.2019 at 06:10 PM to the designation based e-mail ID Chandigarh.dcit.exmp1@incometax.gov.in as well as to the gmail account of this office dotexemption@gmail.com. The e-mail was therefore available and was duly considered by the AO before recording the reasons for reopening. It is strongly reiterated that the e-mail system of the department with the extension as incometax.gov.in cannot be tampered with. Also, to the best of knowledge of the undersigned, the e-mails in google mail also cannot be tampered with by the users.

ITA 706/CHD/2022 A.Y.2012-13 6 It is also stated that before issuing notice u/s 148, reasons were recorded by the AO and these alongwith all the information available were sent to the Commissioner of Income Tax (Exemptions), Chandigarh through proper channel vide letter no. 1649 dated 31.03.2019. The reasons alongwith all the information were examined by the Add CIT, Range-1, Exemptions, Chandigarh as well as by the worthy Commissioner of Income Tax (Exemptions), Chandigarh before satisfying himself that it is a fit case for issuing notice u/s 148. It is also pertinent to note that the notice u/s 148 was issued through the ITBA system after digitally signing the same after seeking approval from the CIT(E), Chandigarh, Copy of approval has also already been provided to the assessee The information relied upon by the AO is the following:-

Annexure-1 Copy of computation of income for the A.Y 2010-13 duly attested by the General Secretary of the assessee which was submitted during the original assessment proceedings u/s 143(3) Annexure-2 Information received from the special auditor through e-mail dated 29.03.2019 (Part-1) and 30.03.2019 (Part-ll) Annexure-A Details of cash deposit, time deposit, investment in mutual funds Annexure-B Submission of assessee dated 12.02.2015 submitted during the original assessment proceedings u/s 143(3). The assessee has been provided with the reasons for reopening, the approval sought from the competent authority, the information/material relied upon through ITBA system; through e-mail; and through post; by digitally signing the documents as well as by manually signing the documents.

The objections raised by the assessee are absolutely frivolous and only an attempt to derail assessment proceedings. The assessee has shown scant respect for statutory notices and has repeatedly indulged in raising baseless objections/allegations. It is also informed that the ITBA system holds confidential data of several assesses in the AO code of the undersigned. This data is held in a fiduciary relationship by the Income Tax department and the Department owes a bounden duty to ensure that personal and confidential information of all the tax payers is held in the most safe and secure manner. Accordingly, the assessee cannot be allowed access to the ITBA system. Moreover, the emails from the special auditor doubted. Nonetheless, it is once again informed that all the information relied upon before recording reasons by the AO and also considered by the competent authority before writing his satisfaction that the case is fit to be reopened, has already been provided to the assessee and the assessee has been given multiple opportunities of being heard. Due procedure has been followed and the principle of natural justice has been upheld. The sequence of events is as under:-

ITA 706/CHD/2022 A.Y.2012-13 7 • Notice u/s 148 of the Act was issued through ITBA system on 31.03.2019 after duly recording reasons for reopening based on application of mind on tangible material and inspection of old record of assessment u/s 143(3) and after seeking approval from the worthy CIT(E), Chandigarh. • Vide letter dated 27.04.2019, the assessee submitted copy of original ITR filed for the A.Y. 2012-13 on 27.09.2012. The assessee also asked for copy reasons for reopening. • Vide notice u/s 142(1) dated 30.05.2019, the assessee was communicated the reasons for reopening and was asked to file its objections to reopening, if any, by 20.06.2019. The assessee was also issued notice u/s 143(2) on 30.05.2019. • Vide letter dated 03.06.2019, the assessee asked for inspection of file. • Vide letter dated 14.06.2019, the assessee was communicated that it may inspect the file on 26.06.2019 in the office of the undersigned. • On 26.06.2019, Sh. Nirmal Mahajan, CA and authorized representative of the assessee, attended this office and he inspected the entire assessment record and the file for the A.Y. 2012-13. He requested for copy of reasons and CIT approval which were provided to him. • On 20.06.2019, the assessee requested for adjournment and on request, vide notice u/s 142(1) dated 12.07.2019, the assessee was communicated that the case was adjourned to 18.07.2019 and the assessee was asked to file its objections by the said date. • On 12.07.2019, the assessee filed its objections. • On 30.08.2019, the objections of the assessee were disposed off and some further documents were asked from the assessee. The assessee was asked to submit these documents by 13.09.2019. • On 13.09.2019, the assessee raised baseless objections that the annexures were not signed manually. But the assessee did not submit the documents asked vide notice u/s 142(1) dated 30.08.2019. • On 16.09.2019, these objections were rebutted. • On 20.09.2019, the assessee again sent a letter making frivolous allegations and seeking inspection of email and ITBA system. • On 25.09.2019, a detailed reply/rebuttal was sent and all the documents manually signed were again sent to the assessee. • On 01.10.2019, the assessee yet again made the same frivolous allegations and sought inspection of ITBA system. Vide this letter, the same is being disposed off. Therefore, it is seen that despite all procedures followed and despite the assessee been given multiple opportunities, the assessee has been unrelentingly non compliant and has only resorted to making baseless allegations. There has only been deliberate non-compliance of notice u/s 142(1) dated 30.08.2019. A show Cause notice u/s 274 r.w.s. 271(1)(b) was issued to the assessee on 03.10.2019 for non-compliance on notice u/s 142(1) dated 30.08.2019 vide which the assessee was given an opportunity of being heard on 08.10.2019 at 03:00 P.M. Subsequently, on 07.10.2019, it was realized that 08.10.2019 was a holiday on account of Dussehra, therefore, vide letter dated 07.10.2019, the assessee was communicated that it was being given an opportunity of being heard on 09.10.2019 at 11:00 A.M. instead of 08.10.2019 (03:00 P.M.)

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On 07.10.2019, the assessee asked for certified true copies of order sheet entries for the proceeding u/s 143(3) for the A.Y. 2012-13 which was provided on the same day. w.r.t. the opportunity of being heard regarding penalty u/s 271 (1 )(b), the assessee vide letter dated 09.10.2019, submitted that it had already started for Chandigarh or the appointed day for personal hearing and on the way it got message that the date of hearing was changed to 09.10.2010 and it had to stop its journey and move back and asked for a date after 14.10.2019. As requested, the assessee was communicated on 09.10.2019 that another opportunity of being heard was fixed on 15.10.2019 at 11:00 A.M. On 15.10.2019, no one appeared before the undersigned. A letter was received vide e-mail on 15.10.2019 at 12.12 P.M. I have gone through this letter, however, the assessee has once again simply resorted to leveling baseless allegations using loose language. The assessee has been given multiple opportunities already. The principle of natural justice has been followed to the hilt. Documents were asked from the assessee u/s 142(1) for the purpose of reassessment proceedings for the A.Y. 2012-13. In order to ensure fairness of decision, the assessee has been given multiple opportunities to furnish documents. There is no reasonable cause for non- compliance on the part of the assessee. Rather, there has been deliberate and unrelenting non-compliance to notice u/s 142(1) dated 30.08.2019.

Accordingly, I impose a penalty of Rs. 10,000/- u/s 271(1)(b) of the Income-tax Act, 1961." 3. The assessee filed the following written submissions before the CIT(A) :

"The assessee is a charitable educational society duly registered u/s 12A of the Income Tax Act, 1961. The assessment in the case of the assessee was made u/s 143(3). However, the AO vide notice u/s 148 dated 31.03.2019, re-opened the assessment of the assessee. On receipt of the notice the assessee complied with the same and also had a request for the copy of the reasons for reopening of the case. After receipt of reasons, the assessee filed objections to the reasons for reopening the assessment. The order for rejecting the objections was accompanied by certain documents which were not part of the file when inspection was made. Assessee doubted the authenticity of the documents and to clear its doubts about the same before moving further requested to the AD for inspection of the system of the AO, ITBA account of the assessee and email account of ,the AO along with reassessment record and word and excel folder of the AO maintained in the case of the assessee before complying with the notice u/s 142(1). However, the AO did not concede the request of the assessee. Inspite of complying with reply on every date fixed by the AO, she issued show-cause

ITA 706/CHD/2022 A.Y.2012-13 9 notice u/s 271(1)(b) and ultimately imposed penalty of Rs. 10,000/-. In her order she did not reproduce submissions of the assessee and stated that assessee has used loose language in the submissions and also made loose allegation in the submissions. The submissions in the appeal are as under: Ground No. 1: General Ground No. 2; Penalty of Rs. 10,000/-:

1.

1. Assessment of the assessee already completed u/s 143(3) was re-opened by the AO and notice u/s 148 issued t6 the assessee. After complying with the notice, assessee sought the reasons for reopening and there was inordinate delay on the part of the AO. Assessee filed objection to the reasons and again AO against her style of working took long in dealing with the objections. AO issued various notices and each and every notice was responded but these were not as per desire of the AO and this annoyed the AO and she initiated the penalty proceedings u/s 271 (1)(b) for non-complying with the notices whereas, the assessee had complied with each and every notices.

2. Coming to the penalty proceedings initiated by the AO under section 271 (1 )(b), the AO without verifying the record that each and every notice has been complied with, issued show cause notice, and imposed penalty by a non-speaking order on her whims and fancies. If we go through the order of the AO, she has reproduced her show cause notices in the order but has in a very nice way, avoided reproduction of the reply of the assessee and passed a non speaking order. Before reproducing the submissions of the assessee before the AO would like to draw your attention to few paras of the penalty order as under: "Last but one para of the penalty order: "I have gone through this letter; however, the assessee has once again simply resorted to levelling baseless allegations using loose language. The assessee has been given multiple opportunities already. The principle of natural justice has been followed to the hilt. Documents were asked from the assessee u/s 142(1) for the purpose of reassessment proceedings for the A.Y. 2012-13 In order to ensure fairness of decision, the assessee has been given multiple opportunities to furnish documents. There is no reasonable cause for non-compliance on the part of the assessee. Rather, there has been deliberate and unrelenting non compliance to notice u/s 142(1) dated 30.08.2019. Accordingly, I impose a penalty of Rs. 10,000/- u/s 271 (1)(b) of the Income Tax Act, 1961."

1. Now coming to the submission of the assessee which have totally been omitted by the AO from the order inspite of knowing that her order is ITA 706/CHD/2022 A.Y.2012-13 10 subject to appeal before the higher authorities and she has to pass a speaking order and being judicial officer have to give weightage to .the submissions of the assessee also and reproduce the same, has knowingly avoided the same to prove the assessee non-compliant. The submissions of the assessee dated 15.10.2019 are as under:

15.10.2019 The Deputy Commissioner of Income Tax (Exemptions), Circle-1, Chandigarh.

Re: Notice u/s 274 read with S. 271 (1)(b) of the Income Tax Act, 1961, In the case of Apeejay Education Society, PAN AAATA3534F Assessment year 2012-13 Submissions Dear Madam, Please refer to your notice bearing No. ITBA/PNL/S/271(1)(b)/2019-20/1018570033(1)dated 03.10.2019. It appears that the notice has been issued just to give harassment to the assessee and penalize him using the power given in the Act illegally.

6. Hence, it is clear that the assessee has complied with notice and you have yourself admitted those dates in your notice. Hence penalty proceedings may please be dropped. In case any adverse opinion is to be formed, a further opportunity may be given to elaborate our contentions. Any adverse action without giving further opportunity, that too with reasonable time, penalty not being time barring, will prove your biased behaviour towards the assessee. Thanking you. Yours faithfully For Apeejay Education Society (Authorised Signatory) Copy to:

1. 1. The Additional commissioner of Income Tax (Exemptions), Range 1, Chandigarh for information.

2. The Commissioner of Income Tax (Exemptions), Chandigarh for information.

1. In the submissions the assessee explained fully the compliance with the notice but the AO did not consider the same and did not bother to even reproduce the submissions. On the contrary she has written whatever she could write to portray the image of the assessee as non-compliant using loose language without reproducing the submissions and without elaborating what is loose language used by the assessee. Few of the comments of the AD about the assessee are reproduced hereunder: • Page 5: "On 1.10.2019, yet again, the assessee sent a letter stating that it doubted the emails exchanged between the AO and the special auditor (which also finds a mention in para 8 of the reasons for reopening as well) were not part of the record before recording the reasons for reopening. The assessee also made other loose and baseless allegations and demanded inspection of ITBA and email system." • Page 7: "The objections raised by the assessee are absolutely frivolous and only an attempt to derail assessment proceedings. The assessee has shown scant respect for statutory notices and has repeatedly indulged in raising baseless objections/allegations." •Page 8: "therefore, it is seen that despite all procedures followed and despite the assessee been given multiple opportunities, the assessee has been unrelentingly ITA 706/CHD/2022 A.Y.2012-13 12 non-compliant and has only resorted to making baseless allegations. There has only been deliberate non-compliance of notice u/s 142(1) dated 30.08.2019." •Page 9: "I have gone through this letter; however, the assessee has once again simply resorted to levelling baseless allegations using loose language".

1. From the above is clear the AO for the reasons best known her has reproduced issues raised by her even though same may not be part of the penalty proceeding but when it comes submissions made by the assessee, she has tried paint the assessee as the worst assessee having no regard for the law or the AO. After receiving the penalty order assessee got hurt by the comments like loose language baseless allegations and wrote a letter to the AO on 17.10.2019 seeking clarification that where the assessee has used loose language or loose allegations. The letter is enclosed. (Page 1-1A). Till date we have not received any clarification from AO.

1. It is humbly submitted that these allegation or wordings used by the AO clearly portray a bad picture of the assessee and is against the provisions of law. It is prayed that AO should be asked to clarify how she has used these language and asking for certain information/ clarification inspection of record to clear doubts is an attempt thwart the proceedings. In case AO fails to elaborate, the allegations should be expunged to maintain the dignity of the assessee.

1. From the above submissions it is absolutely clear that the assessee filed detailed reply to the show cause notices given by the AO. The AO for the reasons best known to her neither reproduced replies nor passed a speaking order giving her findings that why she does not agree with our replies. She has shown her biased mind by reproducing her own communication but avoiding reproducing our replies. She knew very well that she is a quasi Judicial authority and her order is subject to judicial scrutiny and any authority adjudicating on her order will have go through her queries and that also of the assessee before commenting or passing judgment on her order.

1. It is trite law that any authority passing an order is supposed issue a speaking order giving her findings and opening up his/her mind that why he/she does not agree with the submissions of the assessee and on what grounds. It is trite that any non-speaking order is nothing but nullity. The Hon'ble Jurisdictional High Court in Kewal Chaudhry vs. CIT 378 ITR 0052 (P&H) (Page 2-7) has held as under:

"6 m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and the decision makers less prone to errors but also makes them subject to broader scrutiny. n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually component of ITA 706/CHD/2022 A.Y.2012-13 13 human rights and was considered part of Strasbourg Jurisprudence.o. In all common law jurisdictions judgements play vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decisions of the essence and virtually part of "Due Process."

1. Reliance also being placed on CIT vs. Rashtriya Vikas Party of 2015 (O&M) (P&H) date of decision 11.08.2015 (Page 8-13) CIT vs. Indra Sen Sehgal 383 ITR 0592 (P&H) (Page 14-19) 1. From the above judicial pronouncements, it is clear that any non-speaking order is nullity and is required to be quashed. This order being non-speaking, justice may be done by deleting the penalty imposed through a non-speaking order.

1. Without prejudice to the above, as regards allegation of the AO that the assessee has failed to comply with the notice u/s 142(1) is concerned, it is totally incorrect. The assessee has complied with each and every letter/notice sent by the AO as thought fit keeping in view the provisions of law. It may not be as per desire of the AO but it cannot be alleged that the assessee has failed to comply with the notice or is having scant disregard with the notices.

3 In response to this, It is also pertinent to mention that vide notice dated In vide letter dated the 03.06.2019, assessee response to this, vide 30.05.2019, the assessee was acknowledged the receipt of notice dated communicated the reasons for reopening and it was also 30.05.2019 and sought inspection file. mentioned in the last para that notice u/s 143(2) was Nowhere the raised objection that these enclosed and that Annexure annexures were not A and Annexure B referred to in the reasons were being provided. As already mentioned, the entire sent through post. assessment record was inspected on 26.06.2019 by the counsel of the assessee and the documents asked by the counsel were provided to him. No objection or discrepancy was pointed out by the counsel and the counsel did not ask for the annexures to the reasons, which shows that these were already received by the assessee. 4 On 20.06.2019, the assessee requested for adjournment and on request, vide notice u/s 142(1) dated 12.07.2019,

ITA 706/CHD/2022 A.Y.2012-13 15 communicated that the case was adjourned to 18.07.2019 and the assessee was asked to file its objections by the said date. 5 Vide letter dated 14.06.2019, the On 26.06.2019, Sh. assessee was communicated that it Nirmal Mahajan, CA, may inspect the file orf 26.06.2019 and authorized in the office of the undersigned. representative of the assessee, attended this office and he inspected the entire assessment record and the file for the A.Y. 2012-13. He requested for copy of reasons and CIT approval which were provided to him. 6 Vide letter dated 12.07.2019, the assessee filed its objections to reasons for reopening, and stated that it had not received the relevant information on which reasons for reopening were based. 7 On 30.08.2019, the objections of the assessee were disposed of and some further documents were asked from the assessee. The assessee was asked to submit these documents by 13.09.2019.

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The objections raised by the assessee were examined and were disposed of on 30.08.2019. The assessee was also informed that the information- Annexure A and B of the reasons had been sent by post earlier. Nonetheless, the desired information was again sent as Annexure-1, Annexure-2 (Part-1 and Part-ll), Annexure-A and Annexure-B through e-mail on 30.08.2019 and was also uploaded on the ITBA portal on 02.09.2019.

8 Vide notice u/s 142(1) dated Instead of providing the 30.08.2019, the assessee was information/documents asked to submit some for and complying with information/documents required notice u/s 142(1), the for reassessment proceedings for assessee vide letter the A.Y. 2012-13 by called sent through email on 13.09.2019 (03:00 P.M.). In the same notice, the objections raised 13.09.2019 (05:50 by the assessee to reopening were P.M.), merely stated also disposed of and the that the annexures information asked by the assessee annexed to the notice viz. information based on which were not signed. reasons were recorded was also However, on provided to it. 13.9.2019 the assessee stated that the Vide notice u/s 142(1) dated documents were not 30.08.2019, the assessee was signed by the assessee asked to provide some additional for the certified true information and was asked to copies of all the submit the same by 13.09.2019. documents. This shows that the assessee acknowledged the In response to letter dated receipt of all the 13.09.2019 of the assessee, an e

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13.09.2019, mail as well as letter documents which through the system was sent to the were sent through assessee stating that the designation-based designation-based e- mail ID and official e-mail ID and ITBA system which is operated the ITBA system. through a highly secure and unique Now, again vide letter RSA token cannot be tampered with dated 20.09.2019, the and hence, the documents sent are assessee has raised valid documents and are certified the need to inspect the as true scanned copies of the ITBA system and undersigned. The assessee was email folder alongwith again directed to reply to notice its counsel and IT u/s 142(1) dated shows 30.08.2019 expert. by 20.09.2019 and was asked to refrain from attempting to delay the assessment proceedings. 9 In response, vide letter dated On 20.09.2019, the 16.09.2019, the assessee was On assessee again sent a 20.09.2019, the informed that the letter making loose annexures were sent through post allegations that the on 30.05.2019 and the scanned documents were not documents were again sent on part of the record 30.08.2019 through the official earlier and asked to designation-based e-mail ID. Also, inspect ITBA system all the annexures were uploaded and e-mail system of on ITBA system on 02.09.2019 the Assessing Officer. using a highly secure and unique RSA token of the Assessing Officer. The assessee was told that the ITBA system and e-mail sent cannot, be tampered with and therefore, these documents should be considered as valid documents and as certified true copies. The assessee was again directed to reply to notice u/s 142(1) dated 30.08.2019 by 20.09.2019. 10 Vide letter dated 25.09.2019, this ITA 706/CHD/2022 A.Y.2012-13 18 office gave a detailed rebuttal of the allegations made as under:-

'Dear sir,

Kindly refer to your letter dated 20.09.2019 and letter from this office dated 16.09.2019. It is stated that vide letter dated 16.09.2019, it was informed by the undersigned that documents i.e annexures to reasons for reopening had already been sent through post through e-mail and through ITBA portal. These cannot be tampered with and should be considered as certified true scanned copies.

Vide letter dated 20.09.2019, the assessee has stated that inspection of file for the year under reference was carried out by your counsel and certain documents sent by you as annexure were not part of the record. These are absolutely baseless allegations. The entire assessment record for A.Y. 2012-1 a was inspected by Sh. Nirmal Mahajan, CA, on 26.06.2019 in the office of the undersigned. After Inspecting the record, he had requested to provide copies of only reasons for reopening and CIT approval which was provided to him. This was duly recorded in the order sheet entry

ITA 706/CHD/2022 A.Y.2012-13 19 dated 26.06.2019 which was signed by him after giving a receiving. No further document was asked and no such objection/allegation was made.

11 It is strongly noted that due On 01.10.2019, yet again, the assessee procedure has been followed On 01.10.2019, and the principle of sent a letter stating that it doubted that the natural justice has been upheld by giving all the documents relied upon emails exchanged between the AO and before forming a belief that income has escaped assessment for the A.Y. the special auditor 2012-13 by doubted reason of the (which also finds a failure on the part of the assessee to mention in para 8 of disclose fully and truly all material the reasons for facts necessary for its assessment. reopening as well!) The principle of natural justice were not part of the requires that no information should record before be used against the assessee without recording the reasons for reopening. The giving it an opportunity of being heard. Through various notices, the assessee also made other loose and assessee has already been given several opportunities of being heard. baseless allegations The assessee has already been given and demanded an opportunity to inspect the entire inspection of ITBA and e- assessment record and the desired mail system. documents have already been provided. The assessee is directed not to create unwarranted hindrances in the assessment proceedings and to reply to the questions asked vide notice u/s 142(1) dated 30.08.2019 on or before 01.10.2019 (11:00 A.M.) positively. Although all the documents have already been given through post, e mail and ITBA, the assessee is once again all the following documents

ITA 706/CHD/2022 A.Y.2012-13 20 each page duly stamped and manually signed by the undersigned. The assessee was again asked to reply to the notice u/s 142(1) dated 30.08.2019 by 01.10.2019 (11:00 A.M.) positively.

12 Once again, vide letter dated 03.10.2019, the allegations were rebutted.

13 Therefore, it is seen that despite all On 07.10.2019, the assessee procedures followed On and despite asked for certified true copies the assessee been given multiple of order sheet entries for the opportunities, assessee the assessee proceeding u/s 143(3) for the has been unrelentingly non-compliant A.Y. 2012-13 which was and has only resorted to making provided on the same day. baseless allegations. There has only been deliberate noncompliance of W.r.t. the opportunity heard notice u/s 142(1) dated 30.08.2019." regarding penalty u/s 271(1)(b), the assessee vide A show cause notice u/s 274 r.w.s. 271 letter dated (1)(b) was issued to the assessee on 09.10.2019, submitted that it 03.10.2019 for noncompliance on had already started for notice day. u/s 142(1) dated Chandigarh on the appointed 30.08.2019 vide which the assessee day for personal hearing and was given an opportunity of being on the way, it got message that heard on 08.10.2019 at of being the date of hearing was 03:00P.M. Subsequently, on changed to 09.10.2010 07.10.2019, it was realized that and it had to stop its journey 08.10.2019 was a holiday on account and move back and asked for of Dussehra, therefore, vide letter a date after 14.10.2019. dated 07.10.2019, the assessee communicated that it was being given an opportunity of being heard on 09.10.2019 at 11:00 A.M. instead of 08.10.2019 (03:00 P.M.)

ITA 706/CHD/2022 A.Y.2012-13 21

14 As requested, the assessee was On 15.10.2019, no one communicated on 09.10.2019 that appeared before the another opportunity of being heard undersigned. A letter was was fixed on 15.10.2019 at 11:00 A.M. received vide e-mail on 15.10.2019 at 12.12 P.M.

15 I have gone through this letter; however, the assessee has once again simply resorted to levelling baseless allegations using loose language. The assessee has been given multiple opportunities already. The principle of natural justice has been followed to the hilt. Documents were asked from the assessee u/s 142(1) for the purpose of reassessment proceedings for the A.Y. 2012-13. In order to ensure fairness of decision, the assessee has been given multiple opportunities to furnish documents. There is no reasonable cause for non-compliance on the part of the assessee. Rather, there has been deliberate and unrelenting non compliance to notice u/s 142(1) dated 30.08.2019. Accordingly, I impose a penalty of Rs. 10,000/- u/s 271 (1)(b) of the Income- tax Act, 1961.

It is trite law that the requirement of the law is that the assessee should comply with the notices/letters, and it is not must that the reply should be as per desire of the AO. Once the assessee has complied and the AO is not satisfied with the reply, he/she can frame the assessment as desired by her but cannot penalize

ITA 706/CHD/2022 A.Y.2012-13 22 the assessee labeling as non-compliant. In this case finally the matter has gone to Hon'ble High Court and proceedings u/s 148 have been stayed by the Hon'ble P&H High Court and matter is subjudice.

It is not a case of non-compliant, but it is a case of compliance as per not the wishes/desire of the AO and the assessee has used his legal right of seeking clarification which has not been appreciated by the AO. The reliance is being place on decision of Calcutta High Court in the case of Calcutta Chromotype Pvt. Ltd. Vs. ITO 79 ITR 442 (CAL). The Hon'ble High Court has held: "I am entirely unable to accept that contention. Penalty could only be imposed on the failure of the assessee to comply with the notice and not with any requisitions in any letter written by the ITO." Page 20-30.

From the chart given above and even from the penalty order it is clear that the assessee has complied with the notice and same may not be as per requisition of the AO. In such case penalty cannot be imposed and the penalty imposed by the AO is against the Provisions of the law.

Keeping in view the above contentions, it is prayed that justice may please be done to the assessee by deleting the penalty imposed by the AO as in her order even she has admitted that assessee has complied with each and every notice and filed reply to every letter." 4. The ld. CIT(A) confirmed the penalty order, observing as under :

“The apex court of India in the case of Gyanchand vs CIT [137 taxmann.com 323] has opined that if the assessee really has a plausible explanation and if the assessee had no relation with the information obtained in AIR, no prejudice could really have ensued to him if he would have complied with the notices served u/s 142(1) of IT. Act, 'The right of silence' is not available where statutory compliance is warranted. Hence, the penalty imposed on the appellant cannot be held to be erroneous and unwanted. Accordingly appeal is dismissed.

ITA 706/CHD/2022 A.Y.2012-13 23 giving opportunity of hearing to the assessee inspite of his request to do so; that the learned CIT(A) erred in passing a non- speaking order without commenting/adjudicating on the submissions of the assessee; that the learned CIT(A) erred by not passing a proper speaking order and relying on decision of Hon'ble Apex Court which has no connection with penalty under Section 271(1)(b); that the learned Commissioner of Income Tax (A)fell into grave error by confirming the penalty of Rs. 10,000/-.

6. The ld. DR, on the other hand, has placed strong reliance on the impugned order.

7.1 The ld. Counsel for the assessee has invited our attention to a copy of the aforesaid letter/reply (APB-I, page 52-53) addressed by the assessee to the AO, wherein, it has inter-alia been stated that; “It is no where prescribed in the law that the assessee is supposed to reply to the queries of the AO as per his/her whims and fancies. If the Assessee feels that in notice there are certain issues which ITA 706/CHD/2022 A.Y.2012-13 25 are contradictory or doubtful, assessee has every right to ask any clarification on that. In compliance to your notice, assessee to dear his doubts, before replying to your queries has shown his willingness to verify records. This Is right of the assessee. Instead of clearing the doubts of the assessee, you are trying to suppress the Information requested by assessee by using your authority in an illegal way and labelling the assessee as a person creating deliberate and unwarranted hindrances in the re-assessment proceedings.

However, situation is reverse, assessee is asking for certain information/clarification/ Inspection and for the reason best known to you, you are deliberately denying the opportunity to the assessee and denying the assessee his legal right. Even to the issues raised by the assessee, where-ever you feel you have issued contradictory statements, you are deliberately avoiding reply to those issues. Hence, it is clear that the assessee has complied with notice and you have yourself admitted those dates In your notice. Hence penalty proceedings may please be dropped. In case any adverse opinion is to be formed, a further opportunity may be given to elaborate our contentions. Any adverse action without giving further opportunity, that too with reasonable time, penalty not ITA 706/CHD/2022 A.Y.2012-13 26 being time barring, will prove your biased behaviour towards the assessee.”

7.2 It is seen that APB 57-64 is a copy of the notice issued on 30.08.2019 u/s 142(1) of the Act. At APB 57, the notice details the requirements which the assessee had to fulfil in response thereto. At page 58 onwards, the objections raised by the assessee against the re-opening of the complete assessment have been disposed of. It is, thus, correctly contended that in doing so, the mandate of ‘GKN Driveshafts (India) Ltd. Vs ITO’, 259 ITR 19 (S.C) has been violated in as much as the objections raised by the assessee were required to be, as per this mandate, disposed of by a separate speaking order, but here, no separate speaking order has been passed disposing of the objections and the same has been done by disposing of the objections through the annexure to the notice issued u/s 142(1) on 30.08.2019.

7.3 It is not a case of silence, though the ld. CIT(A) has observed it to be so. All the notices issued to the assessee were duly replied to by the assessee. In this regard, the following is the undisputed sequence of events in the matter :

ITA 706/CHD/2022 A.Y.2012-13 27

Date Particulars 31.03.2019 Notice dated 31.03.2019 issued under section 148 of the Income Tax Act. 1961 ('the Act") 27.04.2019 In response, Assessee on 27.04.2019 filed 1TR and requested to provide the reasons recorded. 30.05.2019 Notice dated 30.05.2019 under section 142(1) of the Act is issued, and compliance had to be made by 03.06.2019 03.06.2019 In response, the Assessee vide letter dated 03.06.2019 requested for inspection of the assessment record 14.06.2019 Vide notice dated 14.06.2019, the Assessee was communicated that it may inspect the records on 26.06.2019. 20.06.2019 The Assessee further requested an adjournment to file objections. 26.06.2019 The Assessee's authorized representative inspected the record. 12.07.2019 Notice dated 12.07.2019 issued under section 142(1) of the Act and Assessee was asked to file its objections by 18.07.2019. 12.07.2019 Assessee vide letter dated 12.07.2019 filed its detailed objections. 30.08.2019 Notice under section 142(1) of the Act was issued, wherein objections filed by the Assessee were disposed off and vide same notice certain questions/documents were also sought by the Assessee. The assessee was communicated to comply by 13.09.2019. 13.09.2019 The Assessee vide letter as well as via email on 13.09.2019 raised certain objections regarding the annexures annexed to the notice dated 30.08.2019. and also stated that this response may not be treated as non-compliance of the notice under section 142(1) of the Act dated 30.08.2019. 16.09.2019 Communication received from the department. To be comply by 20.09.2019 20.09.2019 The Assessee filed its response and asked for file inspection. 25.09.2019 Department vide email communicated with the Assessee. 01.10.2019 The Assessee filed a detailed response. 03.10.2019 Respondent issued notice under section 274 r.w.s 271 (l)(b) of the Act for non- compliance of notice dated 30.08.2019 the assessee was given opportunity to response by 08.10.2019 07.10.2019 Subsequently, it was realized that on 08.10.2019 was a holiday, so the dated for the response is changed to 09.10.2019 09.10.2019 As the date got changed, due to non-availability of the counsel of the Assessee sought adjournment 15.10.2019 Order under section 271(1 )(b) of the act was passed. 02.12.2019 Hon'ble Punjab & Haryana High Court had granted a stay on the assessment proceedings.

8.1 Further, a similar penalty imposed on the assessee for assessment year 2016-17 was deleted by the Tribunal vide order dated 25.09.2023.

The order under appeal is reversed. The penalty of Rs.10,000/- imposed on the assessee u/s 271(1)(d) of the Act is deleted.

In the result, the appeal is allowed.

Order pronounced on 01.05.2024.