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TMI Blog2021 (7) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the above facts and circumstances, we do not find any justification for sustaining the penalty levied by the Assessing Officer- Appeal filed by the assessee is allowed. - ITA No.5996/Del/2019 - - - Dated:- 9-7-2021 - Shri Kul Bharat, Judical Member And Shri O.P. Kant, Accountant Member For the Appellant : Shri A.K. Srivastava, CA For the Respondent : Shri R. K. Gupta, Sr. DR ORDER PER O.P. KANT, AM: This appeal by the assessee is directed against order dated 10/05/2019 passed by the Learned Commissioner of Income Tax (Appeals)-17, New Delhi [in short the Learned CIT(A) ] in relation to penalty levied by the Assessing Officer under section 271(1)(b) of the Income-tax Act, 1961 (in short the Act ) for alleged non-compliance of notices issued during assessment proceeding for assessment year 2010-11. The grounds raised by the assessee are reproduced as under: 1. That on the facts and circumstances of the case and in law the Ld. CIT (Appeals) erred in upholding penalty of ₹ 70,000/- as against penalty of ₹ 80,000/- levied by the Assessing officer u/s 271(l)(b) of the Income-tax Act, 1961. 2. That the observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made detailed submissions contesting the allegation of non-compliance. The said submission have been reproduced by the Ld. CIT(A) on page 6 to 9 of the impugned order. The Ld. CIT(A) has summarized the alleged non-compliances by the assessee on page 10 of the impugned order. After considering the submission of the assessee, the Learned CIT(A) deleted the penalty of ₹ 10,000/- for one default, however upheld penalty of ₹ 70,000/- in respect of the remaining defaults, observing as under: 6.4 Hon ble ITAT Delhi G Bench in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust vs. Assistant Director of Income tax (2008) 115 TTJ (Delhi) 419 held that if assessment order is passed u/s 143(3) and not u/s 144 then non-compliance is deemed to have been waived. Since, in this case, the order passed is u/s 144 of the Act, therefore, the non-compliance cannot be deemed to have been waived. 6.5 Further it is important to note that section 273B does provide that the penalty is not to be imposed if the assessee has reasonable cause for non-compliance. Since, in this case, the assessee has failed to furnish any explanation to justify the non-compliance, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance on the part of the assessee of various notices issued seeking explanation of the cash deposits in the bank accounts, the Assessing Officer was forced to pass the order in best judgement manner ( i.e. ex parte) and thus the Assessing Officer is justified in levying the penalty. 6. We have heard rival submission of the parties on the issue in dispute. A table of non-compliance listed by the Learned CIT(A) in the impugned order is reproduced as under: S. No. Notice Date of Notice Date of Hearing Remarks 1 143(2) 26.09.17 06.10. 17 No compliance 2 142(1) 09.10.17 16.10.17 No compliance 3 142(1) 07.11.17 14.11.17 Assessee himself attended but did not file any requisite details, On request, case was adjourned to 21.11.2017 4 Adjournment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and 8, also the assessee sought adjournment through email. We also find that most of the non-compliance is within the period of one month i.e. from 14/11/2017 to 13/12/2017. The Assessing Officer himself has claimed in para 2 of the assessment order that case was transferred to him because jurisdiction lied with him. It is also to be noted that objection of the assessee against reopening was not disposed off by the Assessing Officer, which is one of the prerequisite for validity of reassessment proceedings. 6.2 In quantum Appellate proceeding, the assessee challenged the reassessment proceedings on the ground that there was no application of the mind in the reasons recorded. According to the assessee, he had filed regular return of income for the year under consideration, whereas the reasons recorded the Assessing Officer has noticed that no return was filed for the relevant assessment year. The assessee also challenged the jurisdiction of the Income Tax Officer at Ashok Nagar, Madhya Pradesh in issuing notice under section 148 of the Act. The Ld. first appellate authority however allowed the appeal of the assessee on merit of the addition observing as under: 6. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed it as profit out of the retail business, falling within the meaning of provisions of section 44AF of the Act. It is clear from the provision of section 44AF of the Act that appellant is not required to maintain or get his books of accounts audited especially when he has shown profits above the threshold limit. 6.3 in such circumstances, looking to the scheme of the Act, no further details are required as such. The bank account clearly indicates the receipts and withdrawals however, the AO has only taken the receipts and disregarded withdrawals as expenditure without any basis. 6.4 It is also seen that the assessee has considered ₹ 15,18,775/- as his gross receipts for computation of profit for retail business and disclosed more than 5% and also ₹ 1,05,000/- as income from professional consultancy. There are certain other receipts in cash also which has been duly considered and the gross total income amounting to ₹ 2,03,690/- has been duly worked out. 6.5 From above discussions it is very clear that the appellant has properly disclosed his income u/s 44AF of the Act, wherein all the receipts have been considered. AO was unable to esta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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