2021 (7) TMI 412 - AT - Income Tax

Penalty levied u/s 271(1)(b) - Reopening of assessment u/s 147 to assess the income on account of deposits made in the saving bank account - failure to comply with the notices issued by the A.O u/s 142(1) - HELD THAT - Though the AO has issued notice u/s 142(1) as well as the show cause notice u/s 271(1)(b) and u/s 144 of the Act however all these notices were remained unserved due to the reason that the assessee was not available at the given address. This fact of non availability of the assessee is not in dispute as the assessee already sold this residential house and shifted to Noida. It is a case of reopening of the assessment for assessing the deposits made in the bank account of the assessee as the assessee was not having any other source of income to be declared in the return of income. Therefore the non-compliance on the part of the assessee is due to the reason of not receiving the notice issued by the A.O. Once the assessee has settled his dispute arising from the quantum proceedings under Vivad se Vishwas Scheme 2020 and explained the reasonable cause for default or failure in compliance of the notice issued by the A.O u/s 142(1) then the case of the assessee falls u/s 273B of the Income Tax Act. Accordingly in the facts and circumstances of the case when the assessee has explained a reasonable cause for failure to comply with the notices issued by the A.O u/s 142(1) the penalty levied u/s 271(1)(b) of the Act is not sustainable and liable to be quashed - Decided in favour of assesee.

Issues:
1. Validity of penalty under section 271(1)(b) for non-compliance with reassessment proceedings.
2. Alleged non-compliance with notices issued by the Assessing Officer.
3. Justification of penalty under section 271(1)(b) for non-compliance.
4. Reasonable cause for non-compliance with notices.
5. Application of section 273B of the Income Tax Act.

Issue 1: Validity of penalty under section 271(1)(b) for non-compliance with reassessment proceedings:
The appellant challenged the penalty imposed under section 271(1)(b) for non-compliance with reassessment proceedings initiated under section 147 of the Income Tax Act. The appellant contended that no notice was served, rendering the penalty unjustified and bad in law. The CIT(A) upheld the penalty, citing the appellant's failure to comply with notices issued by the Assessing Officer. However, the Tribunal found the penalty to be unsustainable due to the appellant's reasonable cause for non-compliance, leading to the penalty being quashed.

Issue 2: Alleged non-compliance with notices issued by the Assessing Officer:
The Assessing Officer had issued notices under sections 142(1) and 271(1)(b) of the Act, which the appellant claimed were not received due to a change in residence. The appellant argued that the non-compliance was due to not receiving the notices as they had shifted to a different address. The Tribunal noted that the appellant had sold the house where the notices were sent and had not provided a current address to the Assessing Officer, leading to the notices being unserved. Despite the appellant's failure to participate in the assessment proceedings, the Tribunal considered the reasonable cause for non-compliance and found the penalty unjustified.

Issue 3: Justification of penalty under section 271(1)(b) for non-compliance:
The Assessing Officer had reopened the assessment under section 147 r.w.s 144 as the appellant did not participate in the proceedings. The Assessing Officer issued notices, but they remained unserved due to the appellant's change of residence. The Department argued that the appellant cannot claim non-service of notices as they had not updated their address. However, the Tribunal found the non-compliance to be a result of the appellant not receiving the notices at the old address, justifying the penalty under section 271(1)(b) to be quashed.

Issue 4: Reasonable cause for non-compliance with notices:
The Tribunal considered the appellant's explanation for not complying with the notices issued by the Assessing Officer. The appellant had shifted residence, sold the property where notices were sent, and had settled tax disputes under the Vivad se Vishwas Scheme, 2020. The Tribunal accepted the reasonable cause presented by the appellant for the failure to comply with the notices, leading to the penalty under section 271(1)(b) being deemed unsustainable.

Issue 5: Application of section 273B of the Income Tax Act:
In light of the appellant's reasonable cause for non-compliance with the notices, the Tribunal applied section 273B of the Income Tax Act. This section provides relief when a taxpayer establishes a reasonable cause for any failure specified in the Act. As the appellant demonstrated a valid reason for not complying with the notices, the penalty under section 271(1)(b) was quashed, and the appeal was allowed.

This detailed analysis of the judgment highlights the key issues surrounding the penalty imposed for non-compliance with reassessment proceedings and the Tribunal's decision based on the appellant's reasonable cause for non-compliance.

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