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TMI Blog2018 (10) TMI 1989X X X X Extracts X X X X X X X X Extracts X X X X ..... AO seeks to do in the present case is to compel the assessee to execute a document, as rightly put by the learned representative for the assessee before us, and not a case where a document already in possession of the assessee is being asked to be produced - We find that the instant default is not of the type understood by a conjoint reading of clause (c) of Sec. 131(1) of the Act with clause (c) of Sec. 272A(1) of the Act. No merit in the levy of penalty u/s 272A(1)(c) of the Act, which is hereby ordered to be deleted. Decided in favour of assessee. - ITA Nos. 4438/Mum/2017, 4439/Mum/2017, 4440/Mum/2017, 4441/Mum/2017, 4442/Mum/2017, 4443/Mum/2017, ITA Nos. 4499/Mum/2017, 4500/Mum/2017, 4501/Mum/2017, 4502/Mum/2017, 4503/Mum/2017, 4504/Mum/2017 And ITA No. 4505/Mum/2017, 4506/Mum/2017 And Ors. - - - Dated:- 26-10-2018 - Shri G S Pannu, Vice President Shri Pawan Singh, Judicial Member ITA Nos. 4507/Mum/2017, 4508/Mum/2017, 4509/Mum/2017, 4510/Mum/2017 For the Assessees : Shri Vijay Mehta Shri Anuj Kisnadwala. For the Revenue : Shri Rajeev Gubgotra. ORDER PER SHRI G.S. PANNU, VP The captioned are eighteen appeals, six each preferred by thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber of assessees had confirmed existence of bank accounts in HSBC, Geneva as found in the information received under the Indo-French Treaty and, therefore, held that the information was credible and that the denial by the assessee was prima facie not correct . 5. It is also noted by the Addl. CIT, Central Range-2, Mumbai that the verification exercise carried out by the Assessing Officer revealed that assessee was the beneficial owner in respect of the account held with HSBC, Geneva, Switzerland. It is in connection with the proceedings carried out by the Assessing Officer to tax the unaccounted income lying in the said bank account that the earlier referred summons u/s 131 of the Act dated 18.07.2013 were issued by ACIT, Central Circle-9, Mumbai. 6. No doubt, in response to the summons, assessee appeared and a statement was duly recorded, but by the same summons assessee was required to submit a duly filled and notarized Consent Waiver Form in connection with the bank account held with HSBC, Geneva. The Addl. CIT, Central Range-2, Mumbai notes that assessee failed to do so. As per the Addl. CIT, Central Range-2, Mumbai the refusal of the assessee was creating a hurdle in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r five appeals, i.e. ITA Nos. 4440 to 4443/Mum/2017 are treated as infructuous and dismissed. 9. In the above background, the learned representative for the assessee was confronted with the status of quantum assessment proceedings in the context of the monies lying in the stated bank account with HSBC, Geneva, Switzerland. To this, the learned representative submitted that those matters alongwith the impugned appeals were pending before the CIT(A) and the CIT(A) has merely disposed off the penalty appeals whereas the appeals against the quantum proceedings are still pending before him. In this view of the matter, the learned representative made his arguments regarding the technical point, namely, that the failure in question is not covered by the scope and ambit of Sec.131(1) r.w.s. 272A(1) of the Act. In order to appreciate the aforesaid plea, it will be appropriate to refer to the relevant bare provisions of Sections 131(1) and 272A(1)(c), which are reproduced as under :- 131. Power regarding discovery, production of evidence, etc. (1) The Assessing] Officer, Deputy commissioner (Appeals)], Deputy Commissioner] Commissioner (appeals)] and Chief Commissioner or Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of which the penalty has been levied. According to him, if a particular noncompliance by the assessee is not of the nature specified in Sec. 131(1)(c) of the Act, the same could not be construed to be a good reason to levy penalty u/s 272A(1)(c) of the Act. Notably, Sec. 272A(1)(c) of the Act permits levy of penalty if a person to whom summons have been issued either to attend or give evidence of books of account or other documents, fails to attend or produce the books of account or other documents at the stated time and place; and, in this case, the case of the Revenue is that the assessee has failed to produce the required document, i.e. signed Consent Waiver Form. In sum and substance, as per the assessee, non-signing of the Consent Waiver Form cannot be equated to nonproduction of books of account or other documents‟ so as to trigger levy of penalty u/s 272A(1)(c) of the Act. 11. On this limited aspect, we have heard both the parties. The ld. DR appearing for the Revenue has sought to defend the imposition of penalty by reiterating the arguments taken by the lower authorities, which we have already adverted to in the earlier paragraphs and is not being repeated f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already in possession of such documents. It is quite well understood that when a law empowers an authority to compel production of a document from a subject, it is implied that the subject concerned is indeed in possession or expected to be in possession of the document. However, in the instant case, it is not the case of the Assessing Officer that the said Consent Waiver Form was in possession of the assessee. A bare reading of the summons show that a proforma of Consent Waiver Form was enclosed requiring the assessee to sign it, notarise it and thereafter submit it back. Therefore, it cannot be said that there was any default on the part of the assessee to submit a document which was already in his possession, as is the wont of the provision contained in clause (c) of Sec. 131(1) of the Act. What the Assessing Officer seeks to do in the present case is to compel the assessee to execute a document, as rightly put by the learned representative for the assessee before us, and not a case where a document already in possession of the assessee is being asked to be produced. Therefore, without going into any other aspect of the controversy, we find that the instant default is not of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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