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TMI Blog2021 (3) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... -receipt of notice by the assessee was the reasons for non-compliance of notices which according to us is a reasonable cause , therefore, in our view, penalty u/s 271(1)(b) of the Act could not be imposed. Thus non-appearance of the assessee before the A.O. or non-compliance of the notices issued was only because of non-receipt of the notices by the assessee and therefore, in our considered view, the same was a reasonable cause as has also been held in the case of Woodward Governor India P Ltd. Vs CIT ([ 2001 (4) TMI 34 - DELHI HIGH COURT] wherein it was held that levy of penalty is not automatic and the absence of a reasonable cause is necessary. As only source of income of the assessee is from salary from Government of Rajasthan on which TDS has all ready been deducted and apart from this there is no other source of income of the assessee. Hence, there could not be any intention upon the assessee for skipping the service of notices. It was proved that there was reasonable cause for the assessee in failure to comply with the provisions of Section 271(1)(b) of the Act as the non-appearance of the assessee before the A.O. was only because of the non-receipts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er hence same is being rejected the condonation for delay. 3. The Commissioner of Income Tax (Appeal) grossly erred in rejecting the appeal without verifying the genuineness of the reason that since appellant did not get original order therefore she was submitted the application for the certified copy of order and as soon it was available to the assessee appeal for the same filed, hence it could not be stated that appellant had concealed the fact from revenue. 4. The assessee is Addl. Chief judicial magistrate in Rajasthan Judicial services. The Appellant filed her return on 27.07.2011 vide E-filing acknowledgment no. 249076100270711 declaring total income of 12,80,870/-. Thereafter the case was selected for scrutiny and notice u/s 143(2) dated 01.08.2012 notice u/s 142(1) dated 12.06.2013, 13.12.2013, 09.01.2014, 28.01.2014 was served for A.Y. 2011-12 at her Pali and Kekri District Ajmer. But there was transfer of appellant to various places of Rajasthan. Due to which the notices u/s 143(2) 142(1) was not served and she fails to attend and file reply on the date of hearing. Due to this Ld. AO passed ex-parte order on 04.03.2013 U/s 143(3)/144 and levied penalty u/s 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to condone the delay provided under the statute is to enable the Courts to do substantial justice to the parties by disposing of the matter on merits, therefore, while considering the matters for condonation of delay, the law must be applied in a meaningful manner which subserves ends of justice and technical considerations should not come on the way of cause of substantial justice. There is no quarrel that the explanation and reasons explained for delay must be bonafide and not merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in the underhand way. If the party who is seeking condonation of delay has not acted in malafide manner and reasons explained are factually correct then the Court should be liberal in construing the sufficient cause and lean in favour of such party. A justice-oriented approach has to be taken while deciding the matter for condonation of delay. However, this does not mean that a litigant gets free right to approach the court at its will. If we apply the settled principles as laid down by the Hon ble Supreme Court as well as other courts on the facts of the present case, we find that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment or penalty, but as per section 249(3), an appeal can he admitted even after expiration of the said period , if appellant has sufficient cause for not presenting it within that period, In the present case also assessee could have filed an appeal within the stipulated time frame, but she was migrating from one district to another for the purpose of serving her duties to the Government of Rajasthan (Law Department). Due to the transferable job, this is uncontrollable in the hands of the assessee. Thereafter so appeal is preferred with delay of 625 days. Further, requesting the condonation of delay, we are relying' on the following decisions:- 2. It has been held in a similar case in the case of COLLECTOR LAND ACQUISITION Vs. MST, KAIJI AND OTHERS-(1987) 167 ITR 471(SC): In the above case it was held that the delay can be condoned if there exists sufficient cause for the delay and the reasons for the same is properly evidenced. The appeal should be dispose of on merit after affording reasonable opportunity of hearing to both the sides. 3. STATE OF UP Vs. BAHADUR SINGH OTHERS (1983)142 ITR 745(SC) It was judicially decided that where the explanation for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice U/s 142(1) issued at Pali 13/12/2013 Assessee was posted at Jaipur Notice U/s 142(1) issued at Pali 09/01/2014 Assessee was posted at Jaipur Notice U/s 142(1) issued at Pali 28/01/2014 Assessee was posted at Jaipur From the above chart, we noticed that the assesseee at that relevant time was posted at Jaipur and since all the notices issued by the Revenue were served at Pali and Kakari but were never personally served upon the assessee as at that particular time, the assessee was posted at Jaipur, therefore, service of notices could not be taken effect upon the assessee and because of this reason, the said notices U/s 143(2) and 142(1) of the Act could not be complied with by the assessee. The Revenue has not been able to demonstrate before us that even a single notice was ever served upon the assessee. However, even as per the order of the A.O., notice was served either upon one Shri Rajesh Davera or upon one Shri Raghverder but no notice was served upon the assessee and the order of penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Coordinate Bench of Indore ITAT, in the case of M.P. State Civil Supplies Corporation Ltd. Vs ACIT in ITA No. 713/Ind/2015, 2016 Tax Pub (DT) 4071 (Ind-Trib) has held as under: that power to levy the penalty is discretionary and penalty cannot be levied merely because it is lawful to do so. No penalty could be levied for technical and venial breach of provisions and no penalty could be levied where the breach of provisions flowed from bonafide belief of the assessee. Therefore, the failure of the assessee to comply with the notice could not be said to be a default which would justify the levy of penalty under section 271(1)(b). The Coordinate Bench of ITAT, Chennai in case of V.B. Senthil Kumar v. ACIT in I.T.A. Nos. 688 to 694/Mds/2011, 2013 TaxPub (DT) 0484 (Chen-Trib) has held as under: Assessee is a Non-Resident Indian (NRI), shows that he had genuine difficulties in complying with the notices issued by the assessing authority, within the time allowed. His pre-occupation outside India definitely dilutes the gravity of the charge leveled against him therefore, penalty under section 271(1)(b) was deleted. Since, in the present case, there is nothing on record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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