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TMI Blog2016 (11) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the assessee, except for putting forth claims, has failed to discharge the onus upon him to prove the existence of good and sufficient reasons that prevented him from paying the said taxes - levy of penalty confirmed. - ITA No. 7157/Mum/2014 - - - Dated:- 21-9-2016 - Shri Jason P. Boaz, Accountant Member and Shri Sandeep Gosain, Judicial Member For The Appellant : None For The Respondent : Shri Purushottam Kumar ORDER Per Jason P. Boaz, A.M. This appeal by the assessee is directed against the order of the CIT(A)- 33, Mumbai dated 01.09.2014 upholding the levy of penalty of ₹ 2,44,943/- under section 221(1) of the Income Tax Act, 1961 (in short 'the Act') by the Assessing Officer s order dated 28.01.2013. 2. This appeal was fixed for hearing on a number occasions, but neither anyone was present for the assessee nor was any adjournment sought on his behalf. Even the notice for hearing issued by RPAD could not elicit compliance thereto or a response in this regard. On the day the Bench did not function, the case was adjourned and notice of next date of hearing was informed through Notice Board and by issue of notice to the partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 01.09.2014 disagreed with us and claimed that Scrutiny proceedings are different from the penalty proceeding U/s. 221(1); i. When the Assessee, Assessing Officer, Authorised Chartered Accountant all were same for both the years in question, it would be unreasonable to believe that both the cases would not be discussed at the same meeting especially when the dates coincided with each other so frequently so often; ] j. Probably the Hon'ble CIT-Appeals 33 wanted us to have 2 different meetings on the same day for both different assessment years to prove the veracity of our case; k. It is hereby honestly disclosed that we had met the same learned officer several times and it would be very unreasonable to think that since the scrutiny case (Asst. Year 2010-2011) was being discussed and disposed, no talks were ever carried out for the Asst. year 2012-2013 although all the dates coincided with the dates mentioned by the learned officer when the Order U/s. 221(1) was passed by him. 3. One of the other reasons for the non-payment of taxes was that we were expecting a refund, which however could not be realized since the claim was disputed by the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, for which the undersigned shall remain obliged and always pray. 3.2 Though the assessee has raised eight grounds in this appeal, however the sole issue on which the appeal is preferred is in respect of the levy of penalty under section 221(1) of the Act for A.Y. 2012-13. 4. The learned D.R. was heard and he places strong reliance on the orders of the authorities below in levying and confirming the levy of penalty under section 221(1) of the Act. According to the learned D.R., the learned CIT(A), after considering the submissions put forth by the assessee vide letter dated 23.02.2013 (recorded at para 2.3 of the impugned order) and the order of the Assessing Officer (AO) levying the said penalty of ₹ 2,44,943/- under section 221(1) of the Act, observed that the uncontroverted fact in the case on hand was that the assessee did not pay due taxes before filing the return of income of A.Y. 2012-13, wherein admittedly the tax liability was determined at ₹ 2,44,943/-. It is submitted that the learned CIT(A) was of the view that in the assessee s submissions, the assessee has failed to demonstrate or explain that the circumstances that led to this default was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to furnish the explanation. However, the same remained unattended. Consequently the A.O having been satisfied that the appellant had committed default u/s.221(1) of the I.T. Act, 1961, levied the penalty of ₹ 2,44,943/-. 2.2 Aggrieved by the said action of the A.O., the appellant is in appeal, before me. 2.3 In appeal proceedings, the appellant vide his letter dated 23.2.2013, has submitted as under: At the outset, let me state that the undersigned runs a transport agency in the proprietary capacity under the name and style of M/s SPEED CARGO CARRIERS. The self assessment tax for the Ast. Year 2012-13 to the tune of ₹ 244,943/ - (Rupees Two Lacs Forty Four Thousand Nine Hundred Forty Three Only) was payable by us, however due to circumstances beyond our control and due to financial vulnerability, we orally sought time for payment of taxes before the end of financial year. It is to be noted that Scrutiny requirements for Asst. Year 2010-2011 were regularly fulfilled before the Learned Officer for his satisfaction in order to ensure appropriate passing of order u/s 143(3) of the Income-tax Act, 1961. It is to be further noted that the said order was pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In my view, the appellant has failed to appreciate the fact that scrutiny proceedings and penalty proceedings are two separate and independent proceedings and, thus, the attendance in scrutiny proceedings cannot be construed as attendance in response to notices issued in penalty proceedings and that too for different assessment years. The appellant further contended that time for payment of taxes was orally sought. From the statement of the appellant, it appears that the fact of non-payment of self assessment tax was apprised of to the appellant by the A.O. It is also apt to note that, on completion of scrutiny assessment for A.Y.2010-11 on 31.12.2012, demand raised was entirely paid on 17.1.2013 whereas S.A. tax for year under consideration was paid only after passing of penalty order and prior to filing appeal before me. 2.5 Provisions of Sec.140A(3)r.w.s.221(1)of the Act are very clear. Section 140A(3) stipulates that 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, be deemed to be an assessee in default in respect of the tax or interest or both remaining unpaid, and all the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Admittedly, the undisputed fact, in the case on hand, is that the assessee did not pay due taxed before filing of the return of income for A.Y. 2012-13; wherein the tax liability to be paid under section 140A(3) of the Act was determined by the assessee himself at ₹ 2,44,943/-. In the light of the submissions of the assessee put forth before the authorities below and the facts on record, we concur with the view of the learned CIT(A) that the assessee has failed to establish with any material evidence that it was due to circumstances beyond his control and due to financial crunch that he was prevented from paying the determined/admitted tax liability of ₹ 2,44,943/-. We also find that, as observed by the learned CIT(A), the AO had levied the said penalty only after issue of show cause notice, affording the assessee opportunity of being heard in the matter; which is in accordance with the procedure laid down in the Act. In our view, on an appreciation of the orders of the authorities below, we find that the assessee, except for putting forth claims, has failed to discharge the onus upon him to prove the existence of good and sufficient reasons that prevented him from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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