9911796707
TMI Blog2014 (2) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... order:- "2.1. A search and seizure operation was conducted in the case of assessee and during the assessment proceedings the assessee had failed to comply with the notice u/s 142(1) issued by AO and in the result the AO passed penalty order u.s 271(1)(b) for all the 7 A.Ys. 3. The following facts emerge from the AO's order: 3.1. Consequent upon search and seizure on Shiv Vani group dated 6/01/2011 this case was centralized alongwith other group cases. On 07/03/2012 a notice u/s 153A of the Income Tax Act, 1961 was issued and served upon the assessee directing him to file income tax return. This remained uncomplied with. On 03/04/2012 a notice u/s 271(1)(b) of the Income Tax Act was issued to the assessee fixing the case of hearing on 11/04/2012 which also remained uncomplied with. 3.2. Again on 25/04/2012 a showcause notice u/s 271(1)(b) alongwith notice u/s 142(1) was issued for hearing on 3/5/2012. The assessee did not file any reply/return to this notice also. In view of the above facts and in the light of the judgement given by Hon'ble Patna High Court in the case of CIT vs Standard Mercantile Co.(160 ITR 613) the assessing officer held that the assessee has failed to compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is a result of quasi-criminal proceeding and penalty should 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. No penalty should be imposed if the assessee was acting in honest and genuine belief in a particular manner. As held be the Supreme Court in Hindustan Steel Ltd. vs. State of Orissa (1972) 83 ITR 26 (SC), penalty should not 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 when the breach flows from a bonafied belief that the offender is not liable to act in the manner prescribed by the statute." 4.1. However the CIT(A) did not accept the explanation offered on the following reasoning:- "5.1. I have considered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vide its order dated 3.1.2014 has deleted the similar penalty holding as under:- "We have heard both the sides and perused the material placed before us. The penalty had been levied by the Assessing Officer for non-compliance of the notice dated 8.11.2010. From the assessment order, it is evident that the notice under section 142(1)/143(2) dated 8.11.2010 alongwith the detailed questionnaire was issued fixing the case for 18.11.2010. These details have been mentioned by the Assessing Officer in paragraph 2 page 1 of the assessment order. Thus, total ten days' time was allowed from the date of issue of the notice. In the assessment order, the Assessing Officer has not mentioned the date on which such notice was served upon the assessee. Therefore, in our opinion, the time of less than ten days allowed by the Assessing Officer for complying with the detailed questionnaire cannot be said to be a sufficient time being allowed to the assessee and, therefore, failure of the assessee to comply with such notice cannot be said to be a default which may justify the levy of penalty under section 271(1)((b) of the Act. Accordingly, the same is cancelled." 8. Furthermore, we also note t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding as under:- "7. We have carefully considered the submissions and perused the records. We find considerable cogency in the Ld. Counsel of the assessee's submission that the show cause notice does not mention about the non-compliance of notice on which penalty has been levied. Hence, assumption of jurisdiction is not proper. We further find that in these cases the AO has asked explanation of questions and assessee was given only 7 days time. In these circumstances, in our considered opinion, the assessee was not given proper opportunity and in the same situation this tribunal in ITA No. 4239/Del/2013 in the case of Shivaansh Advertising and Publications (P) Ltd. vide its order dated 3.1.2014 has deleted the similar penalty holding as under:- "We have heard both the sides and perused the material placed before us. The penalty had been levied by the Assessing Officer for non-compliance of the notice dated 8.11.2010. From the assessment order, it is evident that the notice under section 142(1)/143(2) dated 8.11.2010 alongwith the detailed questionnaire was issued fixing the case for 18.11.2010. These details have been mentioned by the Assessing Officer in paragraph 2 page 1 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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