Pradeep Chopra L/H Of Late Amarchand ... vs Assessee

ी एन0एस0 सैनी, लेखा सद य एवं ी कुल भारत, या%यक सद य के सम& BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER आयकर अपील सं./ ITA No. 2180/Ahd/2011 %नधा)रण वष)/Assessment Year: 2008-2009 Shri Pradeep Chopra DCIT, Cir.11 (Legal Heirs of deceased Amarchand Vs Ahmedabad. Fatechand Chopra) 320, New Cloth Market Ahmedabad 380 061.

अपीलाथ,/ (Appellant) -.यथ,/ (Respondent)

Assessee(s) by : None Revenue by : Shri M.K. Singh, Sr.DR

सन ु वाई क तार ख/ Dateof Hearing : 13/04/2015 घोषणा क तार ख / Date of Pronouncement: 17/04/2015

आदे श/O R D E R

PER N.S. SAINI, ACCOUNTANT MEMBER: This is an appeal filed by

the assessee against the order of the Commissioner of Income-Tax (Appeals)-XVI, Ahmedabad dated 27.6.2011.

2. The only grievance of the assessee in this appeal is that the CIT(A) erred in confirming the levy of penalty under section 271(1)(b) of the Act.

3. Brief facts of the case are that penalty under section 271(1)(b) of the Act was levied by the AO on the ground that notice under section 143(2) and 142(1) were issued on 27.8.2009 for compliance on 15.9.2009 and they were served on the assessee by speed post on 4.9.200, and the assessee failed to attend on the date of hearing. The show cause notice for imposition of penalty under section 271(1)(b) of ITA No.2180/Ahd/2011 2

the Act was issued for making compliance on 8.7.2010, which was served on the assessee on 1.7.2010. The assessee did not comply with the said notice. Therefore the AO levied penalty of Rs.20,000/-.

4. On appeal, the CIT(A) confirmed the penalty on the ground that the assessee failed to comply with the notices under section 142(1) and 143(2) dated 27.8.2009 as well as notice for levy of penalty issued on 1.7.2010. He further observed that the contentions of the assessee that adjournment etc. were verified from the assessment record, but no such application was stated to be filed with the AO. Nothing like was stated in the order sheet.

5. Notice of hearing was served on the appellant-assessee, and the AR of the assessee has filed adjournment application on the ground that he is outstation. As the reason for adjournment was found to be not a plausible one, the adjournment application was, rejected by the Bench.

6. The DR supported the orders of the lower authorities.

7. After hearing the DR and perusing the material on record, we find that the penalty under section 271(1)(b) of the Act of Rs.20,000/- came to be levied on the assessee for non-compliance to the notice under section 143(2) and 142(1) dated 27.8.2009. The same was confirmed by the CIT(A) by observing that the claim of the assessee regarding adjournment application was verified from the assessment record, and no such application was found to be filed, and that nothing was also stated in the order sheet by the AO. We find from the order of the CIT(A) that in para-2(1) he has quoted the written submissions filed by the assessee during the course of appeal hearing. In this the assessee has stated that another notices under section 142(1) and 143(2) were issued on 4.1.2010 requiring the assessee to comply on 11.1.2010. It is stated that in the said notices there were requirement of three points as stated in para-1 of the order, and accordingly, vide letter dated ITA No.2180/Ahd/2011 3

3.5.2010 all the compliances were made, and no pending requirement or details was there. It was, therefore, prayed that no penalty should be levied. The fact of issue of another notices under section 142(1) and 143(2) on 4.1.2010 has not been denied or controverted by the DR before us.

5. We find that in the similar facts, this Bench of the Tribunal in the case of M/s.Raj Enterprise Vs. ITO, in ITA No.958/Ahd/2011 order dated 4.3.2015, held as under:

"8. We find that in the similar circumstances, the Chennai Bench of the Tribunal, wherein one of us (N.S. Saini, Accountant Member) was a Member constituting the Bench, deleted penalty by order passed in the case of Sardarmal Kothari Vs. ACIT, in ITA No.210/Mds/2012 dated 8.3.2013, and has held as under:

"This is an appeal filed by the assessee against the order of Commissioner of Income Tax (Appeals)-IX, Chennai, dated 30.8.2012 for the Asst. Year 2009-10. The only grievance of the assessee in this appeal is that the Commissioner of Income Tax (Appeals) erred in confirming the penalty of Rs.10,000/- levied by the Assessing Officer under sec.271(1)(b) of the I.T. Act.

2. The Assessing Officer levied penalty of Rs.10,000/- under sec.271(1)(b) of the Act as the assessee did not respond to notices issued by him under sec.143(2) & 142(1) of the I.T. Act on three occasions, ie., on 2.9.2010, 8.9.2011 and 15.10.2011, fixing the dates of hearing on 20.9.2010, 12.9.2011 and 20.10.2011 respectively. Subsequently, the assessment was made under sec.143(3) of the Act wherein the assessee appeared and furnished information called for by the Assessing Officer. The assessee preferred appeal before the Commissioner of Income Tax (Appeals) against levy of penalty contending that no Show Cause Notice has been issued by the Assessing Officer before levy of penalty under sec.271(1)(b) of the Act.

3. The assessee contended that he has cooperated with the Assessing Officer by responding to the notices issued there after and the assessment was completed under sec.143(3) of the Act and, therefore, since he has cooperated with the assessment proceedings complying with the notices subsequently issued and since the assessment was made under sec.143(3) of the Act and ITA No.2180/Ahd/2011 4

it was not an ex-parte assessment under sec.144 of the Act, the Assessing Officer should not have levied penalty under sec.271(1)(b) of the Act. He placed reliance on the decision of Delhi Bench of the ITAT in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust v. Asst. Director of Income Tax (115 TTJ 419) and the decision of Ahmedabad Bench of the Tribunal in the case of Swarnaben M. Khanna & Others v. DCIT (132 TTJ 1). However, the Commissioner of Income Tax (Appeals) confirmed the penalty levied by the Assessing Officer on the ground that the assessee did not respond to the notices issued by the Assessing Officer.

4. The Counsel for the Assessee reiterates the submissions made before the Commissioner of Income Tax (Appeals) and submits that there is no justification in levying penalty, especially when the assessment was made under sec.143(3) of the Act and not under sec.144 of the I.T. Act.

5. Departmental Representative supported the orders of lower authorities.

6. We have heard both sides. Perused the materials on record and the orders of authorities below. We have gone through the decisions relied on by the Counsel for the Assessee. In both these decisions, the Tribunal held that when an assessment has been made under sec.143(3) and not under sec.144 of the I.T. Act, it means that subsequent compliance in the assessment proceedings was considered as good compliance and the defaults committed earlier were ignored by the Assessing Officer and, therefore, there is no case for levy of penalty under sec.271(1)(b) of the Act. In the present case, the assessee seems to have co- operated with the assessment proceedings by responding to the notices and filing information called for and the assessment was completed under sec.143(3) and not sec.144 of the Act. Therefore, we hold that there is no case for levy of penalty under sec.271(1)(b) of the I.T. Act the assessee's case."

9. Respectfully following the above order of the Tribunal, we delete the penalty of Rs.50,000/- levied under section 271(1)(b) of the Act, and allow the appeal of the assessee."

ITA No.2180/Ahd/2011 5 Respectfully following the above quoted order of the Tribunal, we delete the levy of penalty and allow ground of appeal of the assessee.

9. In the result, the appeal of the assessee is allowed.

Order pronounced in the Court on Friday the 17th April, 2015 at Ahmedabad.

Sd/- Sd/- (KUL BHARAT) ( N.S. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER