9911796707
TMI Blog2013 (4) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... . On the facts and in the circumstances of the case, the CIT(A) erred in confirming the penalty as there 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 penalty is verbatim which is as under: 5. The A.O. has observed that during the course of the scrutiny assessment proceedings, Shri Rajesh Shah, C.A., assessee's Authorised Representative (AR) was asked to file the details vide order-sheet noting dated 14.10.2009. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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............." 8. So far as the assessment orders in all respect of these assessees are concerned, I find that there is not a single whisper by the A.O. that there was default on the part of the assessees to make compliance of any notices issued u/s.142(1) or 143(2) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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