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TMI Blog2019 (1) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... he vs. DCIT [ 2017 (3) TMI 1756 - ITAT INDORE] Under same set of facts relating to penalty u/s 271(1)(b), similar view of deleting penalty has been taken by Coordinate Bench Indore in another case of Hemant Kumar Soni Ors. Vs. DCIT [ 2017 (1) TMI 1581 - ITAT INDORE] Mr. Sunit Madhok remained non-compliant to the notice u/s 142(1) and and therefore assessments were framed ex-parte u/s 153A r.w.s. 144 - On perusal of the provisions of section 273B which provides that no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provisions if he proves that there was a reasonable cause for the said failure, we find that for the A.Y. 2010-11 to A.Y. 2015-16 penalty should not have been levied on Mr. Sunit Madhok as he was having reasonable cause for not appearing before the assessing officer as the information required to be submitted, needed more time than the time granted by the assessing officer. We are thus inclined to hold that penalty of 10,000/- each for u/s 271(1)(b) for A.Y. 2010-11 to A.Y. 2015-16 needs to be deleted and accordingly, set aside the finding of both lower authorities and direct the revenues authorities t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the reply was very short for making due compliance and thus it was a reasonable cause preventing the assessee from appearance. He also submitted that only 3 to 4 days of time was given to the assessees for replying the notices running into 24 pages covering almost 31 issues and it was humanly not possible to reply at such short notice. 8. Ld. counsel for the assessee further submitted that except in the case of Sunit Madhok, assessment in the case of all other assessee(s) have been framed by-party, under s. 153A r.w.s. 143(3) of the Act and none of the assessments have been framed ex-parte under section 144 of the Act. He submitted that all such assessments have been framed after going through the various details and documents furnished by the respective assessees. In such circumstances, it has to be presumed that the earlier default, if any, under s. 142(1) has got waived. In evidence of such fact, copies of the abstract of the relevant assessment orders at page no. 177 to 208 of paper book are referred. He also pleaded that in the similar circumstances, Hon'ble Bench, Indore in the case of Pramila Ghodhe vs. DCIT (2017) 49 CCH 0401 Indore' Trib and again, in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 12. It is brought to our notice that except in the case of Sunit Madhok, assessments in all the other assessee(s) have been framed u/s 153A r.w.s 143(3) of the Act which shows that proper representation was there before the assessing officer by the assessees and assessee(s) participated in the assessment proceedings to the satisfaction of Ld. Assessing Officer. In these facts where the assessment orders have not been framed ex-parte u/s 144 of the Act but have been framed u/s 143(3) of the Act than the penalty levied u/s 271(1)(b) has been held to be unjustified by Coordinate Bench Indore in the case of Pramila Ghodhe vs. DCIT (2017) 49 CCH 0401 dated 20.03.2017 observing as follows: "We have considered the facts, rival submissions and perused the material available on record. We find that the assessment in this case was made under section 143(3) of the Act, which means that there was subsequent compliance to the notices issued by the authorities. We also noted that Ld. counsel also attended before the AO on 17.12.2015 and filed replies in all the cases including the case of the assessee. The AO verbally agreed but counsel's presence was not recorded. We are of the view th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty u/s 271(1)(b) of the Act. Secondly, in this matter, the assessments have been completed u/s 143(3) of the Act, therefore, no penalty can be levied if the assessments have been completed u/s 143(3) and there is subsequent compliances in the assessment proceedings was considered as good compliances and default committed earlier were ignored. Therefore, penalty u/s 271(1)(b) was deleted by various Tribunals. In the case of Akhil Bhartiya Parthmik Shmshak Sangh Bhawan Trust vs. ADIT (2008) 115 TTJ 419 (Del), it was held that where the assessee had not complied with notice u/s142(1) but assessment order was passed u/s 143(3) and not u/s 144, that meant that subsequent compliance in assessment proceedings was considered as good compliance and defaults committed earlier were ignored by the Assessing Officer, therefore, levy of penalty u/s 271(1)(b) of the Act was not justified. The case laws cited by ld. Departmental Representative are distinguishable on facts, hence, inapplicable to this case. We also noted that in the Vinit Chouhan group cases, an order is passed in a group in I.T.A.Nos. 1061 to 1181/Ind/2016 dated 23.11.2016, in which similar set of facts the penalty levied u/s 271 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71CA,] section 271D, section 271E, [ section 271F, [section 271FA] [section 271FAB] [section 271FB] [section 271G] [Section 271GA] [Section 271H] [section 271-I] clause (c) or clause (d) of sub-section (2) of section 272A, sub-section (1) of section 272AA] or [section 272B or ] [sub-section (1) [or subsection (1A) of section 272BB or ] [sub-section (1) of section 272BBB or ] clause (b) of sub-section (1) or clause (b) or clause (c) of sub-section (2) of section 273, no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provisions if he proves that there was a reasonable cause for the said failure 16. In the light of above facts as well as on perusal of the provisions of section 273B of the Act which provides that no penalty shall be imposable on the person or the assessee, as the case may be, for any failure referred to in the said provisions if he proves that there was a reasonable cause for the said failure, we find that for the A.Y. 2010-11 to A.Y. 2015-16 penalty should not have been levied on Mr. Sunit Madhok as he was having reasonable cause for not appearing before the assessing officer as the information r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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