2018 (6) TMI 408 - AT - Income Tax

Penalty u/s 272A(1)(C) - wilful noncompliance to the summons u/s 131 - bonafide reasons for non-compliance - Held that - Appellant had filed a letter informing that he is out of the country and will not be available till 6.6.2011. The Add. CIT has recorded this fact in the penalty order and therefore it is not understandable as to why and how the next date of hearing was fixed on 6.6.2011 when the AO was very well aware that the appellant would not be available on that date - the appellant had reasonable cause for non-appearance before the AO on the above dates of hearing and it cannot be considered as a case of noncompliance The cause of action for levy of penalty has arisen on each date of default and the penalty of 10, 000 has been levied for each date of noncompliance. Therefore in effect the penalty levied is only 10, 000 per default and in such circumstances it is the ITO/AO who has the power to pass the penalty order and not the Add. CIT. Therefore we hold that the Addl. CIT had no jurisdiction to pass the penalty order in the case before us. We also find that the AR has given the explanation for reasonable cause for non-compliance of the summons u/s 131 for each day of the default. The fact that the assessment of the company was ultimately completed u/s 143(3) of the Act also proves that the assessee company has furnished the relevant details. AR has bonafide reasons for non-compliance and the AO had issued only one notice for non-compliance on three dates. - Decided in favour of assessee

Issues Involved:
1. Erroneous order by the Commissioner of Income Tax (Appeals) - CIT(A).
2. Dismissal of appeal by CIT(A).
3. Upheld penalty levied under section 272A(1)(c) of the Income Tax Act.
4. Non-appreciation of written submissions by CIT(A).
5. Non-adjudication on facts of the case by CIT(A).
6. Non-exigibility of penalty for non-compliance with summons.
7. Alleged non-compliance by the appellant.
8. Adequate notice period between summons and hearing dates.
9. Opportunity for cross-examination of the management of M/s. American Infoserv Pvt. Ltd.
10. Justification of summons issued to the appellant.
11. Jurisdiction of the Addl. CIT in issuing notice under section 272A(1)(c).
12. Legal permissibility of the appellant as custodian of client documents.
13. Discrepancy in the authority that imposed the penalty.
14. Overwriting on the date of hearing in the notice issued.
15. Reasonable cause for non-attendance in response to summons.

Detailed Analysis:

1. Erroneous Order by CIT(A):
The appellant argued that the CIT(A)'s order was erroneous both on facts and in law. The Tribunal examined the facts and found that the appellant had reasonable cause for non-appearance on the specified dates, thus the order by CIT(A) was indeed flawed.

2. Dismissal of Appeal by CIT(A):
The CIT(A) dismissed the appeal without properly considering the appellant's submissions. The Tribunal noted that the CIT(A) failed to appreciate the written submissions filed during the appellate proceedings.

3. Upheld Penalty under Section 272A(1)(c):
The CIT(A) upheld the penalty of ?30,000 levied under section 272A(1)(c). The Tribunal found that the penalty was not justified as the appellant had reasonable cause for non-compliance on the specified dates.

4. Non-Appreciation of Written Submissions:
The appellant contended that the CIT(A) did not appreciate the written submissions filed on 10.09.2015. The Tribunal found merit in this argument, noting that the CIT(A) did not properly consider the appellant's explanations.

5. Non-Adjudication on Facts by CIT(A):
The appellant argued that the CIT(A) decided the appeal without adjudicating on the facts of the case. The Tribunal agreed, stating that the CIT(A) failed to consider the factual circumstances surrounding the appellant's non-compliance.

6. Non-Exigibility of Penalty:
The appellant contended that the penalty for non-compliance with summons was not exigible. The Tribunal found that the appellant had reasonable cause for non-compliance, thus the penalty was not warranted.

7. Alleged Non-Compliance by Appellant:
The appellant argued that there was no single occasion of non-compliance. The Tribunal found that the appellant had reasonable cause for non-appearance on the specified dates, thus there was no willful non-compliance.

8. Adequate Notice Period:
The appellant contended that there should be at least a 7-day gap between the date of service of notice and the date of hearing. The Tribunal found that the dates of hearing did not provide adequate notice, further justifying the appellant's non-compliance.

9. Opportunity for Cross-Examination:
The appellant argued that he was not given an opportunity to cross-examine the management of M/s. American Infoserv Pvt. Ltd. The Tribunal noted that this was a procedural lapse that affected the fairness of the proceedings.

10. Justification of Summons:
The appellant contended that the issuance of summons under section 131 was not justified. The Tribunal found that the summons were issued without proper justification, further supporting the appellant's case.

11. Jurisdiction of Addl. CIT:
The appellant argued that the Addl. CIT had no jurisdiction to issue the notice under section 272A(1)(c). The Tribunal agreed, stating that the Addl. CIT was not the appropriate authority to levy the penalty.

12. Legal Permissibility of Custodian Role:
The appellant argued that he was not legally permitted to be the custodian of the books of account and other documents of his clients. The Tribunal found this argument valid, further supporting the appellant's case.

13. Discrepancy in Authority:
The appellant pointed out that the original proceedings were before the DCIT, whereas the penalty was imposed by the Addl. CIT. The Tribunal found this discrepancy significant, further questioning the validity of the penalty.

14. Overwriting on Notice:
The appellant argued that there was overwriting on the date of hearing in the notice issued under section 131. The Tribunal found this procedural defect significant, further supporting the appellant's case.

15. Reasonable Cause for Non-Attendance:
The appellant contended that there was a reasonable cause for not attending in response to the summons. The Tribunal found that the appellant had reasonable cause for non-compliance, thus the penalty was not justified.

Conclusion:
The Tribunal concluded that the penalty under section 272A(1)(c) was not sustainable due to the reasonable cause shown by the appellant for non-compliance. The Tribunal deleted the penalty for all the defaults and allowed the appeal.

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