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TMI Blog2019 (12) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... er on the following grounds of appeal before us: "Based on the facts and circumstances of the case, Mr. Sanjay K. Shah ("the Appellant") respectfully craves leave to prefer an appeal against the order passed by the Commissioner of Income Tax (Appeals) - 6, Mumbai ("CIT(A)") dated 5 March 2018 (received on 17.04.2018) under section 250 of the Income-tax Act, 1961 (the "Act") ("the Order"), on the following grounds: 1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in confirming penalty under section 272A(2)(c) of the Act of Rs. 36,400 levied by the JCIT ('AO') for non-compliance of notice under section 133(6) of the Act. The appellant prays that the penalty levied at Rs. 36,400 may please ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order has been passed without due application of mind, without considering the evidence on record, by purporting to rely on evidence which is clearly inadmissible and contrary to law and therefore the said Order is unsustainable and liable to be quashed. The appellant submits that each of the above grounds is independent and without prejudice to one another. The Appellant craves leave to add, alter, amend, vary, omit or substitute any of the aforesaid grounds of appeal at any time before or at the time of hearing of the appeal, so as to enable the Hon'ble Tribunal to decide on the appeal in accordance with the law." 2. Briefly stated, on the basis of India-France Double Taxation Avoidance Agreement (for short 'DTAA'), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied ownership of any such bank account and also is stated to have not furnished any details as were called for by the A.O. In the backdrop of the aforesaid facts, the A.O finding the assesses reply to be unsatisfactory, therefore, held a conviction that the assessee had wilfully failed to produce the required documents as were specified in the notice under Sec.133(6), dated 19.12.2013. On the basis of the aforesaid facts, the A.O observing that the assessee had wilfully not complied with the notice issued to him under Sec.133(6), therefore, levied penalty of Rs. 36,400/- under Sec.272A(2)(c) of the Act. 3. Aggrieved, the assessee assailed the penalty imposed by the A.O under Sec. 272A(2)(c) in appeal before the CIT(A). Observing, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthi (1998) 7 Supreme Court Cases 123 (SC). 5. Per contra, the ld. Departmental Representative (for short 'D.R') did not object to the seeking of condonation of delay in filing of the appeal by the assessee. 6. We have given a thoughtful consideration and after perusing the application filed by the assessee seeking condonation of delay of 46 days, which is further supported by his 'affidavit', we find substantial force in the claim of the ld. A.R that the delay of 46 days in filing of the present appeal had occasioned on account of unavoidable reasons, and not for any lapses or laches on the part of the assessee. Accordingly, we are of the considered view that in all fairness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Sec.272A(2)(c) for non-compliance of a statutory obligation. 9. We have heard the authorized representatives for both the parties, perused the orders of the lower authorities and the material available on record. As observed by us hereinabove, the penalty under Sec.272(A)(c) was imposed on the assessee for the failure on his part to furnish certain details as were sought by the A.O vide his notice issued under Sec.133(6), dated 19.12.2013. As is discernible from the order passed by the Jt. CIT, Mumbai, under Sec. 272A(2)(c), dated 30.12.2014, we find that the assessee in reply to the notice u/s 133(6), dated 19.12.2013, had declined the ownership of any bank account with HSBC, Geneva, and thus for the said specific reason had refused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer, he cannot take the view that assessee failed to produce the required document. We have also noted that on the basis of same information the case of assessee was reopened under section 147 by issuing notice under section 148 dated 12.03.2014. The assessee before ITA No. 4667 Mum 2018Kanaiyalal B. Shah 10 the ld. CIT(A) specifically contended that the re-opening proceeding was dropped by the Assessing Officer. In our view once the assessee denied the ownership of the bank account in response to the notice under section 133(6), the Assessing Officer cannot take the plea that assessee failed to comply with the condition of aforesaid notice. Hence, we are of the view that levy of penalty by Assessing Officer under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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