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TMI Blog2014 (2) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... e statute – thus, the penalty orders quashed – Decided in favour of Assessee. - I.T.A .Nos.-4787 to 4791/Del/2013 - - - Dated:- 6-2-2014 - Smt Diva Singh And Shri T. S. Kapoor,JJ. For the Appellant : None For the Respondent : Ms. Meenakshi Vohra, Sr. DR ORDER Per Bench These are appeals filed by the assessee against the consolidated order dated 29.05.2013 of CIT(A)-XXXI, New Delhi pertaining to 2007-08, 2008-09, 2009-10, 2010-11 2011-12 Assessment Years agitated against the action of the CIT(A) in confirming the penalty imposed by the AO u/s 271(1)(b) of Rs.10,000/- each. 2. No one was present on behalf of the assessee at the time of hearing. However on considering the grounds raised and the material available on record, it was considered appropriate to proceed with the present appeal ex-parte qua the assessee appellant on merit after hearing the Ld. SR. DR. 3. A perusal of the record shows that penalty of Rs.10,000/- u/s 271(1)(b) of the Income Tax Act, 1961 has been imposed by the AO in each of the years. The facts appreciated by the CIT(A) while confirming the order are extracted from his order:- "2.1. A search and seizure operation was conducted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the counsel of the assessee to facilitate in centralization of cases from Nagpur other parts to Delhi, to which the counsel has fully co-operated. There are around 120 assessee in the group which had been assessed at Central Circle-11, New Delhi. 8. That the assessee had filed the return of income after the centralization of group cases. 9. That the assessee group is assessed to tax from many years and they had fully co-operated with the department in assessments proceedings and even during investigation proceedings with the department. 10. That the assessment order for the year was passed u/s. 153A r.w.s. 143(3) not under section 144 of the Act. From this fact it is crystal clear that the assessee made the compliance in the assessment proceedings as such there could have been no reason to come to the conclusion that the default was deliberately or willful. This is well supported by the judgment given by Hon'ble ITAT Delhi Bench G in the case of Akhil Bhartiya Prathmik Shikshak Sang Bhawan Trust vs. Assistant Director of Income-tax (2008)115 TTJ (Delhi) 419. 11. That the law is well settled that an order imposing penalty is a result of quasi-criminal proceeding and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere ignored by the AO which are the principles laid down by the decision by the Co-ordinate Bench in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust vs ACIT (2008) 115 TTJ (Delhi) 419 relied upon by the assessee in its Ground No-4 and which has been followed in various orders by Co-ordinate Benches. Reference may be made to order dated 31.01.2014 in the case of M/s Manjusha Madan vs DCIT in ITA No-4698 to 4703/Del/2013. For ready-reference we reproduce from the said order 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 del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere passed in the relevant year in the case of the assessee by the AO u/s 153(a) r.w.s 143 assessing the income at NIL. It is seen that from the penalty order that notices were sent requiring the assessee to explain the reasons for non- representation on 11.04.2012 before us. The assessee has also agitated lack of opportunity to explain before the AO. A perusal of the Co-ordinate Bench of the order in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust vs ACIT (cited supra) shows that it was held therein that assessment have not been made u/s 143(3) and not u/s 144 means that there was subsequent compliance in the assessment proceedings which was considered as good compliance and the default committed earlier were ignored by the AO. In these peculiar facts and circumstances following the order dated 31.01.2014 in ITA No-4698 to 4703/Del/2013 in the case Ms. Manjusha Madan vs DCIT. We are of the considered view looking at the discussion and the precedents that the penalty order deserves to be quashed. The impugned order is set aside and the penalty imposed is quashed. It would be appropriate to extract the relevant portion of the finding as under:- "7. We have carefull ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is the result of a quasi-criminal proceedings, 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 bonafide belief that the offender is not liable to act in the manner prescribed by the statute." 4. In view of the above penalty orders are directed to be quashed and the appeals of the assessee are allowed. The said order was pronounced in the open Court at the time of hearing. 5. In the result the appeals of the assessee are allowed. The order is pronounced in the open court on 06th of February 2014. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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