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TMI Blog2015 (8) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... ble or insufficient balances. Therefore, we find merit in the submission of the Ld. Counsel It has been held in various judicial decisions that levy of penalty by the Assessing Officer u/s.221(1) is discretionary and not automatic. Further, for levy of penalty u/s.221 such default must be wilful and not merely accidental. In the instant case, the assessee has proved beyond doubt that the default by him in not paying the self-assessment tax is not wilful and it was beyond his control as there was no sufficient money available with him to pay the self-assessment tax especially when the income is mainly from short term and long term capital gain. CIT(A) has not contravened any of the provisions by admitting any additional evidence. Further, it is the settled proposition of law that the powers of the CIT(A) are coterminous with that of the Assessing Officer. Since in the instant case the various documents produced before the CIT(A) were already before the Assessing Officer in the quantum proceedings, therefore, these documents in our opinion cannot per se be called as additional evidence. Therefore, the ground raised by the Revenue on this issue is dismissed. Thus the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so admitted to hospital on 10-10-2006 and he expired on 25-10-2006. Thereafter, the assessee's wife also suffered from low blood pressure who was admitted to hospital. It was submitted that since the assessee was facing problems one after another the landlord took advantage of the situation and tried to take possession of the godown of the assessee. He along with around 200 persons forcibly attacked the godown and destroyed the same. Unfortunately this event took a communal colour, i.e. Hindu-Muslim conflict and the matter is now subjudice before the court. 5. The assessee further gave a chronology of events such as the fall in the stock market and attachment of bank account, demat account etc. The relevant portion of the submission by the assessee before the CIT(A) reads as under: The stock market fell heavily in January 2008 putting assessee to heavy losses. With no business in hand assessee survives his family by withdrawing from their PPF account. In spite of this assessee has filed his Return of Income on 31/03/2008 vide acknowledgement receipt No. 551, Sir. Due to market position became worst and worst day by day hence assessee could not pay self assessment taxes b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same some copies of such documents are submitting on record. Sir, in all these matters assessee cannot understand that what he has to do first. Due to some other family problems and financial crises assessee could not file appeal in time. Considering the fact here we also request to your honor that the delay for filing appeal may please be condoned. Sir, Assessing Officer has taken survey action at business place of the assesses wife, but the survey authority has not found any discrepancy at business premises, but they had got knowledge about that the assessee is not in position to pay self assessment tax. 6. The assessee also brought to the notice of the CIT(A) the observation of the Hon'ble Finance Minister in the Lok Sabha in his reply to debate on clause by clause consideration of the Finance Bill, 1964. Referring to the provisions of section 140A(3) and the CBDT Circular dated 22-04-1971, the decision of the Hon'ble Calcutta High Court in the case of CIT Vs. Wesman Engineering Company Pvt. Ltd. reported in 104 ITR 650 and the decision of the Hon'ble Karnataka High Court in the case of Ramchandra Pesticides Pvt. Ltd. Vs. CIT reported in 285 ITR 45 the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppear before the Assessing Officer to substantiate the financial hardship, if any. Therefore, the assessee should not be given any premium for non-attendance before the Assessing Officer. 10. The Ld. Counsel for the assessee on the other hand heavily relied on the order of the CIT(A). He submitted that although the assessee has not appeared before the Assessing Officer during penalty proceedings, however, the assessee has appeared before the Assessing Officer during scrutiny assessment proceedings for the A.Y. 2006-07 wherein all details were filed. Referring to paper book page 43 he submitted that an amount of ₹ 6,38,00,289.29 was payable to Religare Securities Ltd., who is the broker for the assessee for his share transaction business. Similarly, referring to paper book page 57 he submitted that an amount of ₹ 4,62,97,093.37 was payable to Religare Finvest Ltd. as on 31-03-2007. Referring to paper book page 75 he submitted that an amount of ₹ 4,63,47,202.78 was payable to Religare Finvest Ltd. as on 31-03-2008. Referring to bank statement maintained with Nagar Urban Cooperative Bank, copies of which are placed at paper book pages 76 to 80 he submitted that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to financial hardship the assessee could not pay self-assessment tax then the burden shifts to the Revenue to establish that assessee has not deposited tax without good and sufficient reason. If the Revenue cannot prove that there was no sufficient reason in not paying self-assessment tax, then in that case penalty u/s.140A(3) cannot be levied. 12. The Ld. Counsel for the assessee further submitted that after the assessment order was passed raising huge demand the assessee preferred an appeal before the CIT(A) which was dismissed by him u/s.249(4) for non payment of self assessment tax. Thereafter, the assessee could arrange the loan and made the payment after about 1 years and filed the appeal before the Tribunal. Referring to the copy of the order of the Tribunal vide ITA No.1721/PN/2012 order dated 28-10-2013 he submitted that the Tribunal allowed the appeal filed by the assessee by directing the CIT(A) to admit the appeal and decide the issue on merit. He accordingly submitted that there was valid reason for non-payment of self assessment tax. Therefore, the order of the CIT(A) should be upheld and the grounds raised by the Revenue should be dismissed. 13. We have con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of self-assessment tax. 13.1 Under the provisions of section 140A(3) if any assessee fails to pay the whole or any part of such tax or interest or both in accordance with the provisions of sub section (1), he shall, without prejudice to any other consequences which he may incur, be deemed to be an assessee in default in respect of the tax or interest or both remaining unpaid, and all the provisions of this Act shall apply accordingly. Similarly, under the provisions of section 221 the assessee is liable for penalty when he is an assessee in default or is deemed to be in default in making a payment of tax. However, as per the second proviso to provisions of section 221(1) if the assessee proves to the satisfaction of the Assessing Officer that the default was for good and sufficient reasons no penalty should be levied under this section. 13.2 In the instant case it is an undisputed fact that the assessee did not appear before the Assessing Officer despite repeated opportunities given by him. This act of assessee by ignoring the Assessing Officer is highly deplorable. However, considering the mishaps in the family caused due to the death of his parents within a very sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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