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TMI Blog2012 (11) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... t to have to consider the fact, no proper notices were served to the assessees." 3. It was submitted by ld. A.R. of the assessee that the issue involved in the present case is covered in favour of the assessee by the Tribunal's decision rendered in the case of Shri Zunzabhai P. Patel vs. Assistant Commissioner of Income Tax in ITA No.3194/Ahd/2009 dated 31.05.2011 copy of which is available on pages 23 to 27 of the paper book and in particular our attention was drawn to para 6 of the Tribunal's order. He further submitted that in the present case also, the assessment order was completed by the A.O. u/s 143(3) of the I.T. Act and no addition has been made in the assessment order for want of any details and hence the facts of the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of mensrea or failure of the Revenue to establish mensrea, are entirely irrelevant in penalty proceedings u/s 271(1)(b) of the Act. In the case under consideration, we find that the ld. CIT(A) upheld the levy of penalty for default in complying with notices issued on 27.09.2007 & 21.7.2008 on the ground that there was no reasonable cause. The assessee explained before the ld. CIT(A) that first notice issued on 27.9.2007 intimated that the case was selected for scrutiny. Sri Kiranbhai Shah, A.R. of the appellant, attended the hearing. He had been informed that this was formal notice for hearing and the AO did not mark his attendance. The ld. CIT(A) did not verify these submissions nor called for any report from the AO. Even otherwise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed on behalf of the assessee and thereafter, assessment completed. In these circumstances, following the view taken by the co-ordinate Benches in the aforesaid two decisions, penalty levied u/s 271(1)(b) of the Act is cancelled. Consequently, ground no.1 in the appeal is allowed." 5. From the above para of the Tribunal's order, it is seen that the Tribunal's decision cited by ld. A.R. of the assessee is on this basis that if assessment order is passed u/s 143(3) and not u/s 144 of the I.T. Act, then non-compliance is deemed to have been waived and on this basis, the penalty imposed in that case u/s 271(1)(b) was cancelled. In the present case also, the assessment was completed by the A.O. u/s 143(3) and not u/s 144 and hence, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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