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TMI Blog2013 (4) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... d the explanation filed by the assessee's in respect of certain transactions and has finally passed the assessment orders u/s.143(3) r.w.s. 153A. Thus it is interesting to note that in some of the assessment years the returns of income filed by these assessees have been accepted. In fact, on the careful perusal of the assessment order it is seen that nowhere any grievance is raised by the A.O. that the assessees or their Chartered Accountant were 'non-cooperative' or made any conscious defiance of noting dt. 14.10.09. Thus in fact, it is seen that the assessee's responded on all the dates as required by the A.O. Merely because on 20.10.2009 the Chartered Accountant of these assessees has not appeared or filed some details as asked by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re was no default committed by the appellant under the provision of sec. 271 (1)(b). 3. Without prejudice to the above grounds the Ld. CIT(A) erred in confirming the penalty when the default was for good and sufficient reasons." 2. At the outset it was submitted by Ld. AR that this is a covered issue as penalty in respect of earlier years i.e. with respect of A.Y 2005-06 and A.Ys 2002-03, 2004-05, 2006-07, 2008-09 and 2003-04 have already been deleted by the Tribunal. Reference was made to the Tribunal order dated 9/5/2012 vide which penalties in respect of A.Ys 2002-03, 2004-05, 2006-07, 2008-09 and 2003-04 (ITA No.8656 to 8658/M/11 and ITA No.8660 to 8661/M/M/11) and the second order dated 12/12/12 in ITA No.8692/M/11 for A.Y 2005-06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,45,225 9 8666/M/2011 Shri Parag M. Sanghvi 2002-03 1,50,000 10 8667/M/2011 "..do.." 2003-04 1,90,000 11 8668/M/2011 "..do.." 2008-09 1,14,164 3. It is pertinent to note here that in some of the assessment years even if these are assessment arising out of the search and seizure action, the returns of income filed by the assessees are accepted. 4. So far as the issue of the levy of the penalty u/s.271(1)(b) is concerned, the A.O. has levied the penalty at Rs.10,000/- per assessment year before us for failure to comply to attend the hearing on 20.10.2009. In all these cases the reasons given by the A.O. for the levy of the penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in details vide order sheet noting dated 14.10.2009 and the said details were asked to be filed on 20.10.2009, but, it appears that there was no compliance and hence, the A.O. invoked sec.271(1)(b) and levied the penalty. 7. relevant part Section 271(1)(b) reads as under: "271 (1) If the Assessing Officer or the Commissioner (Appeals)] or the Commissioner] in the course of any proceedings under this Act, is satisfied that any person-- (a) ...... "(b) has failed to comply with a notice [under sub-section (2) of section 115WD or under sub-section (2) of section 115WE or under sub-section (1) of section 142 or sub-section (2) of section 143 or fails to comply with a direction issued under sub-section (2A) of section 142, or............ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levying the penalty u/s.271(1)(b). In the case of Hindustan Steel Ltd. vs State of Orissa 83 ITR 26 the Hon'ble Supreme Court has held as under: "An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged, either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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