9911796707
TMI Blog2015 (6) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... Dubey ORDER PER BENCH: These appeals are filed by the assessee and they are directed against order passed by Ld. CIT(A)-37, Mumbai dated 01/11/2013 for assessment years 2004-05 to 2009-10. Grounds of appeal in all the appeals are identical and read as under: 1. On the facts and circumstances of the Appellant s case and in law Learned CIT(A) erred in confirming the levied by the AO by provision of section 271(1)(b) of the Income Tax Act, 1961. 2. In any case the Ld. CIT(A) failed to appreciate that the impugned order was passed by the Ld. AO without complying with the provision of Sec. 274 of the Income Tax Act 1961. 3. The appellant craves leaves to add, to amend, alter modify and/ or withdraw any or all the above grounds of appeal, each of which are without prejudice to one another. 2. It may be mentioned here that on 09/06/2015 other group matter on similar facts and circumstances in the case of Mr. Lakhamshi J. Gala were heard and it was common contentions of both the parties that the view taken in the said case would be equally applicable to the present case. It is in this manner these appeals were heard. 3. We have decided the appeals in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o show cause notice was issued before levy of penalty under section 271(1)(b) of the Act. The submissions made by the assessee before Ld. CIT(A) were forwarded to the concerned AO. In reply the AO submitted that notice under section 142(1) dated 5/2/2013 was served on the assessee and copy of acknowledge obtained by the Postal Authorities was also submitted. It was further submitted that in the notice issued under section 142(1) dated 5/2/2013, it was clearly mentioned that non-compliance will be penalized by levy of penalty under section 271(1)(b) of the Act. Thus, it was claimed by the AO that notice u/s. 142(1) was duly served and assessee was put to notice that penalty will be levied for non-compliance. On these facts, Ld. CIT(A) has concluded that assessee did not comply with several notices issued by the AO and only at the very end the AO levied penalty under section 271(1)(b) and assessment was finally completed under section 144 of the Act. Ld. CIT(A) further observed that assessee did not give evidence of compliance with several notices issued under section 142(1) of the Act and did not explain noncompliance. Therefore, Ld. CIT(A) has confirmed the levy of penalty, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require the assessee to attend the assessment proceedings personally and give evidence on 12/2/2013 at 11.30 AM. It is for non-compliance of such notice impugned penalty has been imposed. The penalty order has already been reproduced in the above part of this order. The assessment orders in respect of A.Y 2004-05 to 2009-10 are identically worded so as it relates to mentioning the reason for proceeding to make best judgment assessment under section 144 r.w.s. 153A of the Act. For the sake of convenience the observations of the AO in the assessment order for A.Y 2004-05 to that extent are reproduced below: The search Seizure action u/s 132 of the Income Tax Act, 1961 was carried out in the case of Reliable Paper (India) Private Limited and its Group Concerns, Mumbai between 23.02.2010 and 20.04.2010, wherein incriminating documents. relating to the assessee was found and simultaneously action u/s. 132 of the Income Tax Act, 1961 was carried out on the premises of the assessee at Room no.1, 1st Floor; 23 Central Building, Chowpatty Sea Face, Mumbai- 400007. 2. Subsequently notice u/s. 153A of I.T. Act, 1961 dated 07.03.2011 was issued and duly served on the assessee. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. The date for hearing was fixed on 14.12.2012, but on the designated date no one attended. 9. Furthermore, notice u/s 142(1) dated 31.12.012 was issued wherein a final opportunity of being heard was given to the assessee. The date for hearing was fixed on 07.01.2013, but on the desired date no one attended, In response to the above mentioned notices, the assessee has submitted some details on 08.01.2013. 10. Penalty u/s 271(1)(b) r.w.s. 274 of LT. Act, !l.961 has been initiated vide penalty order dated 14.2.2013. 11. Since the details submitted by the assessee were not complete, notice u/s 142(1) dated 21.01.2013 along with questionnaire was issued and duly served on the assessee calling for various details. The date for compliance of this notice was fixed on 28.01.2013. But no one attended on the desired date. 12. It is very evident from the facts as mentioned in the aforesaid Dft paragraphs that there is continuous non-compliance of various notices onD the part of the assessee and hence the assessment is being completed on the basis of the materials, documents and information as available on record with this office exparte u/s. 144 of the I.T. Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 271(1)(b) to fulfill the compliance of section 274(1). The requirement of section 274 is that order imposing penalty cannot be passed unless the assessee has been heard or has been given a reasonable opportunity of being heard. For imposition of penalty no opportunity has been given to the assessee. The assessee must be put to notice to show cause as to why he/she was unable to fulfill the requirements of the notice. Such opportunity is missing in the present case. Therefore, even not going into the question that whether there is a reference in the assessment order of the failure of the assessee to attend the proceedings on 12/2/2013, it is a clear case where it can be held that levy of impugned penalty is contrary to the statutory provisions of section 274(1). Section 274(1) has been interpreted by the Courts that it provides principles of natural justice that even where a provision for penalty is not attended with a specific provision for giving a hearing, the assessee should be given such opportunity to show, if he can, that default or delay in complying with the substantive provisions of law was not without reasonable cause and reference in this regard can be made to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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