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TMI Blog2016 (12) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... order u/s 143(3) was passed. Now perusal of the facts clearly indicate that this was a case of search and seizure on a big group. Four days time to submit details in such a case is not at all reasonable from any stretch of imagination. Further more the assessee did reply to the subsequent show cause notice and assessment was framed u/s 143(3) of the I.T. Act. This has also to be looked into on the anvil of assessee's submission that the AO has refused the assessee recording of attendance on the specified date and for which the assessee has petitioned to higher authorities.In these circumstances, in our opinion, there was a reasonable cause for non attendance of the assessee. Hence on the anvil of section 273B penalty is not leviable. As the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of group known as "SHREE AGRAWAL COAL GROUP". The search u/s 132 of Income-tax Act, 1961, was conducted on this group including the assessee on 16th March, 2011. The assessment in this case was finalized on 04.03.2013 u/s 143(3) r.w.s. 153A of Income Tax Act, 1961. 2. Notice u/s 143(2) was issued on 07.01.2013, however in the case of A.Y. 2011-12 the notice u/s 143(2) was issued on 24.09.2012. Counsel of assessee filed his power of attorney on 18.12.2012. The assessee's accountant was present in Income tax office with books of accounts, documents, papers etc. on various dates but however, the AO did not record his presence and declined to see the books of accounts, documents, papers produced. The assessee had also filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause from filing with AO. CIT(A) accepted the request of assessee and allowed it to file fresh evidence under rule 46A of Income-tax Rules, 1962. Accordingly the quantum appeals were decided by CIT(A) on merits." 5. Assessee also referred to decision of ITAT in the case of Akhil Bhariya Prathmik Shikshak Sangh Bhawan Trust vs. Asstt. Director of Income-tax 5 DTR 429. However, learned CIT(Appeals) did not find the contentions acceptable. He concluded as under:- "In the case of Akhil Bhariya Prathmik Shikshak Sangh Bhawan Trust vs. Asstt. Director of Income-tax as well as in the case of Swarnaben M. Khanna and Ors., it was held that if the assessment order is passed u/s 143(3) and not u/s 144 then non compliance is deemed to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard both the counsel and perused the records. At the outset learned counsel of the assessee submitted that the assessee's counsel and staff did go to the AO on the specified date but the AO refused to admit their entrance. Learned counsel submitted that the assessee has also filed petition before the higher authorities in this regard. Learned counsel further submitted that assessment in this case has been completed u/s 143(3) of the I.T. Act and not section 144 of the I.T. Act. Hence learned counsel submitted that in these circumstances, the ratio from the case law referred above fully applies to the assessee's case. Hence learned counsel submitted that there was due reasonable cause for non attendance as well as the case law in ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue is squarely covered by the decision of ITAT, Delhi Bench in the case of Akhil Bhariya Prathmik Shikshak Sangh Bhawan Trust vs. Asstt. Director of Income-tax (supra). I may gainfully refer to the concluding portion of the Tribunal's order as under:- "3 We have considered the facts of the case and rival submissions. We find that the Hon'ble Gujarat (sic-Rajasthan) High ' Court has clearly distinguished between cls. (a) and (c) of sub-so (1) of S. 275. Under cl. (a), the levy of penalty is dependent upon the findings of the appellate authorities, which is not the case under cl. (c). In this case, the default of non- attendance to notices was not the subject-matter in the quanturntappeat and it in no way depended up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law as he has opined that the assessment order in the present case though passed u/s 143(3) of the I.T. Act it "appeared" to him to be passed u/s 144 of the I.T. Act. In my considered opinion this is not at all a tenable ground for distinguishing the decision of the ITAT. 12. Further as the above fact clearly indicates it is a technical breach and in such circumstances, as held by Hon'ble Apex Court in the case of Hindustan Steel Ltd. vs. State of Orissa 83 ITR 26 penalty need not be levied. Hence in the background of aforesaid discussion and precedent I have no hesitation in deleting the levy of penalty. Accordingly the orders of the authorities below are set aside and the issue is decided in favour of the assessee. 13. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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