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TMI Blog2015 (7) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... n (1) or sub section (2) of section 120 or any other provisions of this Act. Hence, it has to be seen that whether in the present case, the ITO who issued the impugned notice was assessing officer or not as per these provisions of section 2 (7A) of the Act. Since, there is no finding of CIT (A) in this regard, the matter has to go back to CIT (A) for fresh decision after giving specific finding on this aspect of the matter if we find that the penalty is otherwise justified because if the penalty is not found to be justified for other reasons, this aspect will be of academic interest only and hence, no decision on this aspect will be necessary and therefore, in that situation, we will not restore the matter back to CIT (A). As submitted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving reasonable and sufficient opportunity of being heard to the appellant. 3. That the Ld, CIT (A)-II, Kanpur has failed to appreciate that the notice u/s 133(6) of the Income Tax Act, 1961 could have been issued only by the Assessing Officer of the Bank situated at Kolkata i.e. ITO, Circle 6(1), Kolkata, hence the notice's dated 28.09.2012 08.11.2012 issued by ITO (Intelligence), Kanpur u/s 133(6) of the Income Tax Act, 1961 were illegal and arbitrary , therefore, consequent impugned penalty order u/s 272A(2)(c) of the Income tax Act, 1961 passed against an illegal notice was also bad in law and void-ab-initio. 4. That the Ld. CIT(A)-II, Kanpur has erred in law and on facts in not considering the fact that Bank is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself is not a valid notice and therefore, although there is default of the assessee in complying with the requirement of the notice but penalty u/s 272A(2)(c) is not justified. As per his second submission, he submitted that there was reasonable cause for the delay and hence, as per section 273B, penalty is not justified. In this regard, he submitted that the submissions of the assessee explaining reasons for delay are noted in the penalty order. He also placed reliance on the following tribunal orders:- a) SBI vs. Addl. CIT in ITA No./Hyd/2014 dated 30.04.2015. b) ITO (TDS) vs. Branch manager Banaras State Bank Ltd. in ITA No. 1379/Alld/1998 dated 24.11.2003 He also submitted that copy of these tribunal orders are available on p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all persons to whom he has paid in any previous year rent, interest, commission, royalty or brokerage, or any annuity, not being any annuity taxable under the head Salaries amounting to more than one thousand rupees, or such higher amount as may be prescribed, together with particulars of all such payments made; (5) require any dealer, broker or agent or any person concerned in the management of a stock or commodity exchange to furnish a statement of the names and addresses of all persons to whom he or the exchange has paid any sum in connection with the transfer, whether by way of sale, exchange or otherwise, of assets, or on whose behalf or from whom he or the exchange has received any such sum, together with particulars of all suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer, the Deputy Commissioner (Appeals), the joint Commissioner or the Commissioner (Appeals) for issuing notice under sub section (6) of this section requiring any person including a banking company or any officer thereof, to furnish information in relation to such points or matters, or to furnish statements of accounts and affairs verified in the manner specified by the Assessing Officer, the Deputy Commissioner (Appeals), the joint Commissioner or the Commissioner (Appeals). Since, the notice was issued by the ITO, it has to be seen that whether he is an assessing officer or not as per section 2 (7A) of the I. T. Act. As per this section, an ITO is also an assessing officer if he is vested with the relevant jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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