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TMI Blog2022 (9) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... malafide of non compliance is also required to be kept in mind. The tax and interest are statutory levies, while penalty imposable u/s 272A(1)(d) is subject to Section 273B. Thus, if the taxpayer is able to demonstrate reasonable cause for failure then no penalty is exigible. If in each case for failure to comply with statutory notices issued by the authorities , the penalty is mandatorily to be imposed u/s 272A(1)(d) on the tax-payers, Section 273B will become otiose. It all depends upon the facts and circumstances of the case which requires investigation of complete facts, so as to ascertain that whether the tax-payer is able to demonstrate the reasonable cause as is contemplated u/s 273B or not. The Authorities must look into the entire facts and then arrive at conclusion whether it is a fit case for imposition of penalty u/s 272A(1)(d). Thus, we consider it fit to set aside the appellate order passed by CIT(A) and restore this matter back to the file of CIT(A) for fresh adjudication, after considering all the relevant facts and circumstances , and then arrive at conclusion whether it is a fit case for levy of penalty u/s 272A(1)(d) - Needless to say that proper and adequate op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 declaring total income of Rs. 25,60,940/-. The case of the assessee was selected by Revenue for framing limited scrutiny assessment through CASS with reasons of cash deposits during the year and cash withdrawals , and statuary notice were issued by AO to the assessee under Section 143(2) , dated 13th August, 2018 fixing hearing for 30th August, 2018 which is claimed by AO to have been duly served to the assessee through registered e-mail of the assessee . There was no response by the assessee to the afore-said notice. Subsequently, notices under section 142(1) of the 1961 Act were issued on 14th January, 2019, 31st July, 2019 and 4th September 2019 for compliance on 21st January, 2019, 15th(16th) August,2019 , and 6th September, 2019 respectively, which were also claimed by AO to have been duly served upon the assessee through registered e-mail of the assessee . In response to the aforesaid statuary notices , the assesse did not comply on e-proceedings of ITBA Portal. However, as per AO, the assessee had physically filed written reply with copy of bank account statement and letter to bank only on 6th September, 2019. There was a change of incumbent AO , and notices under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 272A(1)(d) of the 1961 Act to the assessee asking assessee as to why penalty u/s 272A(1)(d) of the 1961 Act be not imposed on the assessee . The said show cause notice was claimed by AO to have been duly served on the assessee. The assessee did not reply to aforesaid show cause notice. The AO also issued one more show cause penalty notice to the assessee under Section 272A(1)(d) of the 1961 Act , dated 21.05.2021 as the final opportunity. The assessee responded to the said notice by submitting a reply on 24.05.2021 through ITBA portal. The assessee in its reply submitted before the AO to keep penalty proceedings in abeyance as the first appeal against quantum assessment was pending before ld. CIT(A). The assessee also explained before the AO that the assessee attended all proceedings before the AO, and when there was a change of incumbent just before the case was getting time barred, the assesseee was at that time at Kolkatta as a Dean of School of Law of Justice, Adamas University, Kolkatta, and therefore could not attend the proceedings nor could submit adjournment application, and the assessment was framed ex-parte by AO inspite of all the documents submitted in the procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(d) of the I.T. Act, 1961 for non-compliance of notices u/s Rs. 143(2) dated 13.08.2018 Rs. 10,000/- Penalty u/s 272A(1)(d) of the I.T. Act, 1961 for non-compliance of notices u/s 142(1) dated 14.01.2019, 31.07.2019, 15.10.2019, 15.11.2019 and 23.11.2019 Rs. 50,000/- Total amount of penalty levied U/s 272A(1)(d) Rs. 60,000/- (Rupees Sixty Thousands Only) 5. Being aggrieved by penalty of Rs. 60,000/- levied by AO vide penalty order dated 10/02/2022 u/s 272A(1)(d) of the 1961 Act, the assessee filed first appeal before Learned CIT(A) , who dismissed the appeal filed by the assessee vide appellate order 15/06/2022 , by holding as under: DETERMINATION AND DECISION 4. During the appellate proceedings, this office issued notice u/s 250 of the Income Tax Act, 1961 on 11.05.2022 to submit documentary evidence if any other than the evidence produced during the course of proceedings before the Income Tax Authority. However, the assessee has not been submitted any additional submission and simply submitted that de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer has erred and acted illegally in adding back Rs. 60 lakhs in the income of the assessee under section 69A of the Act, and also erred and acted illegally in applying the provision of section 115BBE of the Act 3. Because the Assessment order is bad both in facts and in law and not maintainable From the above, it is clear that the assessee has failed to submit any reasonable explanation against the imposition of penalty u/s 272A(1)(d) in his case. Thus, it is clear that, during assessment proceedings, notice u/s 142(1) and 143(2) were issued and served upon the appellant but nobody appeared on the date nor any written reply furnished by the appellant. Therefore, the AO Initiated penalty u/s 272A(1)(d) and accordingly issued a notice but nobody attends the office nor any reply was filed in response to this notice. Further, to provide fair opportunity of being heard, the assesse was served one more show cause notice for the penalty notice u/s 272A(1)(d) as the final opportunity. In the compliance of this notice, the assesse furnished submission through ITBA portal wherein the assesse requested to keep the proceedings in abeyance as he had filed an appeal agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... una Garhwal University, Uttrakhand. The above details are submitted by way of additional evidences, which are now placed on record in file. Thus, the ld. Counsel for the assessee submitted that in connection with these professional assignments, the assessee has to travel a lot which keeps him away from his home town. It was submitted that the assessee is an aged person about 74 years old. The ld. Counsel for the assessee submitted that the assessee is also present in the Court Room before the Division Bench. It was submitted that the assessee is a Retried Professor of Law with Banaras Hindu University. It was submitted that the assessee is not having deep knowledge of computers, and he is digitally not very literate. The notices were sent electronically by emails . It was also submitted that appeal against quantum assessment is pending before Learned CIT(A). Our attention was drawn to Section 275 of the 1961 Act. It was also submitted that merely because initiation of penalty u/s 272A(1)(d) is not challenged before ld. CIT(A) challenging quantum assessment , will not preclude assessee from agitation penalty levied by authorities below and right of appeal cannot be infringed in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 13.08.2018 Rs. 10,000/- Penalty u/s 272A(1)(d) of the I.T. Act, 1961 for non-compliance of notices u/s 142(1) dated 14.01.2019, 31.07.2019, 15.10.2019, 15.11.2019 and 23.11.2019 Rs. 50,000/- Total amount of penalty levied U/s 272A(1)(d) Rs. 60,000/- (Rupees Sixty Thousands Only) The first appeal against penalty order dated 10.02.2022 , was dismissed by ld. CIT(A) vide appellate order dated 15.06.2022. The first appeal against quantum assessment is claimed by the assessee to be still pending before ld. CIT(A). The assessee has contended before us that he is an aged person of 74 years being Senior Citizen. It is submitted that he is not well versed with computers and there were difficulties in compliance with the notices issued by the AO, owing to being digitally not well literate. The sole reply filed before AO by the assessee during assessment proceedings was through physical mode. The assessee has also stated in Form No. 35 filed before ld. CIT(A) in statement of fact, that he is a retired professor and a very ..... 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