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2015 (6) TMI 714 - AT - Income TaxPenalty Order u/s. 271(1)(b) r.w.s. 274 - Held that - In the present case assessee has never been put to the notice to explain as to why penalty should not be imposed under section 271(1)(b) as there was only an indication in the notice issued under section 142(1) that the failure of the assessee to attend the proceedings on 12/2/2013 would entail the assessee for levy of penalty under section 271(1)(b) of the Act. But that cannot be said to be fulfillment of the requirement of section 274(1) as the same require that assessee should be given reasonable opportunity of being heard and fulfillment of such requirement is absent in the present case. In view of above discussion, we hold that Ld. CIT(A) has committed an error in upholding the impugned penalty in respect of all these years. We delete the impugned penalty in all the years. - Decided in favour of assessee.
Issues Involved:
1. Confirmation of penalty levied by the Assessing Officer (AO) under section 271(1)(b) of the Income Tax Act, 1961. 2. Non-compliance with the provisions of section 274 of the Income Tax Act, 1961. Issue-Wise Detailed Analysis: 1. Confirmation of Penalty Levied by the AO under Section 271(1)(b): The primary issue in these appeals is whether the penalty of Rs. 10,000/- imposed under section 271(1)(b) of the Income Tax Act, 1961, for non-compliance with a notice issued under section 142(1), was justified. The penalty was levied because the assessee failed to attend the proceedings on the specified date (12/02/2013) as mentioned in the notice issued on 05/02/2013. The AO argued that the notice clearly stated that non-compliance would result in a penalty under section 271(1)(b). The CIT(A) upheld the penalty, noting that the assessee did not comply with several notices and failed to provide evidence of compliance or explain the non-compliance. 2. Non-compliance with the Provisions of Section 274: The assessee contended that no separate show cause notice was issued for the levy of penalty under section 271(1)(b), which is a requirement under section 274 of the Income Tax Act, 1961. Section 274(1) mandates that "no order imposing penalty under this chapter shall be made unless the assessee has been heard, or has been given reasonable opportunity of being heard." The assessee argued that the mere mention of potential penalties in the notice under section 142(1) does not fulfill the requirement of section 274(1), which necessitates a separate notice specifically for the penalty. Tribunal's Findings: The Tribunal carefully examined the facts and the assessment orders. It was found that the assessment orders did not even refer to the notice issued under section 142(1) dated 05/02/2013, which required the assessee to attend on 12/02/2013. The Tribunal noted that the failure to attend on 12/02/2013 was not a ground for framing the ex-parte assessment under section 144 of the Act. Furthermore, the Tribunal observed that the penalty was imposed solely based on the AO's observations in the notice under section 142(1), without issuing a separate show cause notice for the penalty as required under section 274(1). The Tribunal emphasized that for imposing a penalty, a separate notice must be given, detailing the specific failure and providing the assessee an opportunity to explain the non-compliance. The Tribunal cited various judicial precedents, including decisions by the Hon'ble Madras High Court and other courts, which underscored the necessity of serving a show cause notice and providing the assessee an opportunity to be heard before imposing a penalty. Conclusion: The Tribunal concluded that the levy of the impugned penalty was contrary to the statutory provisions of section 274(1) and the principles of natural justice. The Tribunal held that the CIT(A) had committed an error in upholding the penalty. Consequently, the Tribunal deleted the impugned penalty for all the assessment years in question and allowed the appeals filed by the assessee. Order: The appeals filed by the assessee were allowed, and the impugned penalties were deleted. The order was pronounced in the open court on 09/06/2015.
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