2015 (6) TMI 715 - AT - Income Tax

Penalty 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.

Summary

Issues Involved:
1. Confirmation of penalty levied under section 271(1)(b) of the Income Tax Act, 1961.
2. Compliance with the provision of Section 274 of the Income Tax Act, 1961.
3. Adequacy of opportunity given to the assessee to be heard before imposing the penalty.

Issue-wise Detailed Analysis:

1. Confirmation of Penalty Levied Under Section 271(1)(b) of the Income Tax Act, 1961:
The primary issue in the appeals was whether the penalty of Rs. 10,000/- imposed under section 271(1)(b) of the Income Tax Act, 1961, was justified. The penalty was imposed due to the assessee's failure to comply with a notice issued under section 142(1) of the Act, requiring personal attendance and submission of evidence on a specified date. The Ld. CIT(A) confirmed the penalty, noting that the assessee had not complied with several notices and failed to provide a reasonable explanation for non-compliance.

2. Compliance with the Provision of Section 274 of the Income Tax Act, 1961:
The assessee argued that the penalty was imposed without issuing a separate show cause notice as required under section 274 of the Act. The Ld. CIT(A) dismissed this argument, relying on the AO's assertion that the notice under section 142(1) contained a warning about the penalty for non-compliance. However, the Tribunal observed that the notice under section 142(1) did not suffice as a show cause notice for the penalty under section 271(1)(b). The statutory requirement under section 274(1) mandates a separate notice to provide the assessee a reasonable opportunity of being heard before imposing the penalty.

3. Adequacy of Opportunity Given to the Assessee to be Heard Before Imposing the Penalty:
The Tribunal emphasized that section 274(1) requires that no penalty order shall be made unless the assessee has been given a reasonable opportunity of being heard. The notice under section 142(1) did not fulfill this requirement as it merely mentioned the possibility of a penalty without providing a specific opportunity for the assessee to explain the non-compliance. The Tribunal cited various judicial precedents, asserting that the principles of natural justice necessitate a proper show cause notice and an opportunity for the assessee to provide an explanation.

Conclusion:
The Tribunal concluded that the penalty imposed under section 271(1)(b) was contrary to the statutory provisions of section 274(1) due to the lack of a proper show cause notice and opportunity for the assessee to be heard. Consequently, the penalty was deleted for all assessment years involved, and the appeals filed by the assessee were allowed. The Tribunal's decision underscored the importance of adhering to procedural requirements and ensuring that the assessee's right to a fair hearing is respected before imposing penalties.