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TMI Blog2016 (10) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee pertaining to assessment years 2006-07 to 2012-13 involving a common issue relating to levy of penalty under section 271(1)(b) of the Act. Since the facts and circumstances in all the appeals stand on similar footing, the appeal for assessment year 2006-07 is taken as the lead case. This appeal is directed against a common order passed by CIT(A)-38, Mumbai dated 31/07/2014, which in turn, arises out of an order passed by the Assessing Officer under section 271(1)(b) of the Income Tax Act, 1961 (in short the Act ) dated 20/12/2013. In all the years, penalty of ₹ 10,000/- each has been levied under section 271(1)(b) of the Act primarily for the reason of delay on the part of the assessee in complying with the information called for finalizing the assessment. 2. In brief, the relevant facts are that the assessee company is a part of Unity Group of cases, wherein a search and seizure action under section 132(1) of the Act was carried out by the Department on 10/2/2012. A notice under section 142(1) of the Act dated 14/09/2013 was issued by the Assessing Officer for all the seven captioned assessment years fixing the date of hearing on 19/10/2013. Since the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for all the seven years were completed under section 153A r.w.s. 143(3) of the Act on the basis of the material and submissions put-forth by the assessee. Before CIT(A) assessee also pointed out that since the search was conducted with respect to certain purchase transactions carried out in the case of M/s. Unity Infraprojects Ltd. (supra), the compliance was made in that case on priority basis. Before the CIT(A), assessee also furnished a copy of the proceedings sheet in the case of M/s. Unity Infraprojects Ltd. (supra) to show that it had complied with significant requirement of the Assessing Officer. The Ld. Representative for the assessee pointed out that the detailed explanation rendered by the assessee has been unjustifiably rejected by the CIT(A) also. 5. On the other hand, Ld. Departmental Representative defended levy of penalty under section 271(1)(b) of the Act for each of the assessment year by pointing out that the explanation rendered by the assessee for non-compliance was a very generalized explanation to the effect that there was heavy work load. It is pointed out that reasons advanced by the assessee for noncompliance do not justify the deletion of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Act dated 11.10.2013: - QUESTIONNAIRE/A.Y.2006-07 TO 2012-13/UNITY INFRAPROJECTS LTD Please furnish the following details/documents as indicated with respect to hearings for A.Y. 2007-07 TO 2012-13 1. If you wish to be represented by an authorized representative, please furnish a letter of Authority in prescribed form. Without letter of authority no cognizance of his/her attendance shall be taken. 2. Kindly narrate brief history of assessment for A.Y. 2007-07 to 2012-13 along with all supporting documents including assessment orders, appellate orders, copies of returns, audit report, balance sheet, P L a/c, computation of income etc. 3. Please provide details of earlier search assessments. 4. Please specify whether any claim u/s. 80IA/IB is made in return this time in earlier search assessment proceedings. 5. Please submit challans for the payment of taxes in following manner for A.Y. 2006-07 TO 2012-13: Disclosure made Description of issue Date amount of payment of taxes wrt disclosure made Manner of earning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Also furnish corresponding delivery challan, Octroi receipt/challan, Weigh Bill, Material Receipt Note, Stock Book Entry at site/project office in case of each purchase. Submit evidence in support of claim. 8. Details of scrap sale made by the assessee. 9. Provide details of Fixed assets, Fixed Deposits and Shares and securities held by the assessee in the captioned assessment years. 10. Produce foreign Travels details alongwith reason for the period A.Y. 2006-07 to A.Y. 2012-13 in case of all the members of Unity Group with supporting bills documents. 11. Please submit the details with documentary evidences of all the items inventorized during the course of search conducted in the premises of Unity group. 12. During the course of search/Survey action at the premises, certain loose papers/documents, along with digital data were found and seized/impounded. Page wise explanation of the papers impounded during the course of the search/survey for the period A.Y. wise in format as per annexure. 13. Dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AN, Address and contact no. of the party Nature of business transaction Gross Income credited as per books of account Income as per TDS certificate TDS deducted Deduction u/s. 21. Kindly furnish the details of sundry creditors as appearing in the books of accounts of the assessee for A.Y.s 2006-07 to 2012-13. 22. In case of sale or purchase of shares of group companies (Listed or unlisted), the following additional information for A.Y. 2006-07 to 2012-13. Name of the company/Address/PAN/whether listed/purchased from primary or secondary market/price at which transaction took place/Nominal value of shares/Premium/Fate of investment/ Whether shares were originally issued at premium/discount. 23. Identify expenditure not paid in time as per the provisions of section 43B and to be disallowed, a separate list thereof for the period A.Y. 2006-07 to A.Y. 2012-13. 24. Submit list of equity shareholders holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he may direct that such person shall pay by way of penalty,- (i) [* * *] [(ii) in the cases referred to in clause (b), [in addition to tax, if any, payable] by him, [a sum of ten thousand rupees] for each such failure ;] The provisions of section 273B of the Act read as under: - 273B. Penalty not to be imposed in certain cases Notwithstanding anything contained in the provisions of clause (b) of sub- section (1) of] section 271, section 271A, section 271B section 271BB,] section 271C, section 271D, section 271E, clause (c) or clause (d) of sub- section (1) or sub- section (2) of section 272A, sub- section (1) of section 272AA] or sub- section (1) of section 272BB or] clause (b) of subsection (1) or clause (b) or clause (c) of sub- section (2) of section 273, no penalty shall be imposable on the pet- son or the assessee, as the case may be, for any failure referred to in the said provisions if he proves that there was reasonable cause for the said failure.] On a conjoint reading of the provisions of section 271(1)(b) and section 273B of the Act, it is clear that no penalty shall be imposed on the assessee for failure refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee also relied upon the decision of our Co-ordinate Bench in the case of Kripa Realtors Ltd., Others in ITA Nos.2950/Mum/2015 others dated 20/7/2016, where it has been held that even if assessee had not complied with the requirements of the notice issued under section 142(1) of the Act at a particular stage but later the assessment was finalized under section 143(3) of the Act and not as a best judgment assessment under section 144 of the Act, the subsequent compliance mitigates the rigors of penalty contained in section 271(1)(b) of the Act. In this context, the Tribunal relied upon the following decisions:- 1. Shri Ramesh Kumar Jain vs. ACIT, ITA No.464/Mum/2013 dated 23/9/2015 2. Akhil Bharatiya Prathmik Shmshak Sangh Bhavan Trust v. ADIT (2008) 115 TTJ 419 (Del). and concluded as under:- 4. After hearing both the parties and on considering the above detailed factual matrix of each of the seven appeals, we are of the opinion, the assessee under consideration are eligible for relief. Further, we have also perused the cited decisions of the Tribunal (supra) which are relevant for the proposition that where the assessee had not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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