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TMI Blog2022 (12) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... al returns filed u/s 139(1) by the assessee for five Assessment Years and made additions only two Assessment Years 2016-17 and 2017-18 based on some seized materials. In our considered opinion, the assessee could not said to be in default, when the assessee was not served with the notices. The assessee also pleaded that he is not aware of the faceless assessment proceedings and the ITBA portal of the Income Tax Department which has resulted in filing statutory appeals before the CIT(A) with a delay of 96 days. Thus, without proper service of notices to the assessee, the assessee cannot be levied with penalty under Section 271(1)(b) for non-compliance of such notices. For the above reasons we hold that the levy of penalty under Section 271(1)(b) is unjustified and therefore, the same are deleted. Appeal filled by assessee allowed. - I.T.A. Nos.208to214/Rjt/2022 - - - Dated:- 9-12-2022 - Shri Waseem Ahmed, Accountant Member And Shri T. R. Senthil Kumar, Judicial Member For the Appellant : Shri G. R. Sanghavi, A.R. For the Respondent : Shri O. P. Chaudhary, Sr. DR ORDER PER BENCH: These seven appeals are filed by the assessee as against separate appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by AO 5. 2017-18 5,40,280/- 19,60,000/- Additions made by AO 6. 2018-19 7,64,750/- 7,64,750/- Assessed as per original Return of Income filed under Section 139 7. 2019-20 5,22,660/- 5,22,660/- Assessed as per original Return of Income filed under Section 139 It is thereafter the Assessing Officer initiated penalty proceeding under Section 271(1)(b) of the Act, for non-compliance of the 142(1) notices dated 17.02.2021 and 28.02.2021 for all the Assessment Years 2013-14 to 2019-20. It is seen from the penalty order a show-cause notice for initiating penalty proceeding under Section 271(1)(b) were served on the assessee to the email address, however, as there was no response or reply from the assessee, the Ld. Assessing Officer imposed a penalty of Rs. 10,000/- each under Section 271(1)(b) for all the Assessment Years 2013-14 to 2019-20. 3. Aggrieved against the penalty orders the assessee filed seven appeals before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to 153C Notice for the Assessment Year 2013-14 to 2019-20, the original Return of Income filed by the assessee under Section 139 of the Act, were accepted for all the years except for the Assessment Year 2016-17 and 2017-18, wherein additions were been made by the Assessing Officer based on some seized materials. Thus, the assessee claimed its bonafideness in not appearing before the Assessing Officer pursuant to the notices issued to an email address which is no more relating to the assessee concerned. 4. The Ld. CIT(A) have taken up the appeals on record by condoning the delay of 96 days in filing the appeals, however, on merits confirmed the levy of penalty under 271(1)(b) for noncompliance of notices issued by the Assessing Officer. The Ld. CIT(A) relied upon Coordinate Bench judgment in the case of M/s. Raj Enterprise in ITA No. 958/Ahd/2011 dated 04.03.2015 wherein it was held that the assessment was completed under Section 143(3) not under Section 144 of the Act. Therefore, the Tribunal held that no case of levy of penalty under Section 271(1)(b) was leviable. However, in the present cases before the CIT(A), the assessment has been completed under Section 144 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to be deleted and allow the appeals in favour of the assessee. 7. Per contra, the Ld. Sr. D.R. Shri O. P. Chaudhary appearing for the Revenue seriously objected that the assessee is a habitual defaulter in not responding to the notices issued by the Assessing Officer which resulted in passing ex-parte assessment orders and as well as during the penalty proceedings. The assessee was not bother to give the correct email address to the Assessing Officer, to have given proper notices to the assessee. Thus, the Ld. CIT(A) following the Coordinate Bench judgment in the case of M/s. Raj Enterprises and Patna High Court judgment in the case of Standard Mercantile Company confirmed the levy of penalty for all assessment years, which does not require any interference and the same are liable to be sustained and the appeals filed by the assessee are to be dismissed. 8. We have given our thoughtful consideration and perused the materials available on record including the Paper Book filed by the assessee. It is the case of the assessee, that the email address namely [email protected] does not belong to the assessee but related to his former Tax Consultant. The statutory not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 271BB, section 271C, section 271CA, section 271D, section 271E, section 271F, section 271FA, section 271FAB, section 271FB, section 271G, section 271GA, section 271GB, section 271H, section 271-I, section 271J, clause (c) or clause (d) of sub-section (1) or sub-section (2) of section 272A, sub-section (1) of section 272AA or section 272B or subsection (1) or sub-section (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 subsection (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 reasonable cause for the said failure. 9. A perusal of the above provisions makes it clear inasmuch as that levy of penalty is discretionary and not automatic. The said conclusion is further justified by Section 273B of the Act. A careful reading of Section 273B encompasses that certain penalties shall not be imposed in cases where reasonable cause is successfully pleaded. It is seen that penalty imposable under Section 271(1)(b) is also included one among the exclusions. By the said provisions, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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