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TMI Blog2023 (4) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory notice u/s. 142(1). Thus considering the following finding of the Co-ordinate Bench in the case as relied upon, we delete the levy of penalty - Appeal of the assessee is allowed. - ITA No. 73/JP/2023 - - - Dated:- 11-4-2023 - Shri Sandeep Gosain, Jm And Shri Rathod Kamlesh Jayantbhai, Am For the Assessee : Sh. Praveen Saraswat (CA) For the Revenue : Smt Monisha Chaudhary (Addl. CIT) ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 13/01/2023 [here in after (NFAC)] for assessment year 2017-18 which in turn arise from the order dated 16.12.2019 passed under section 143(3) of the Income Tax Act, by the ITO, Ward 3 (5), Jaipur. 2. Succinctly, the fact as culled out from the records is that e-return declaring income of Rs. 2,31,510/- was e-filed by the assessee on 28.07.2017. The case was selected for limited scrutiny by CASS. Notice u/s 143(2) was issued to the assessee on 29.09.2018 which was duly served upon the assessee on its registered e-mail id as well as by speed post. Notice u/s 129 u/s 142(1) were issued by the undersigned on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 272A(1)(d) of the Act, the AO issued a show cause notice to the assessee calling for her objections, if any. However, the assessee did respond only once as under- I am not a computer literate person and I do not have regular access to my e-mail account i.e. [email protected]. Notice might have been mailed at the said address but the same were never received by me. Now, during the appellate proceedings vide statement of facts/Grounds of appeal, she had stated that in one occasion the notice u/s 142(1) was not delivered to her mail. However, the same plea was not made before the AO to counter the same during the penalty proceedings. Further, the registered mail id was not changed during the assessment proceedings and the mail was delivered when the scrutiny initiation notice i.e., 143(2) was served on her appellant responded as per her submissions in appellate proceedings to the notice u/s 143(2). Further, all other notices were also served on her through the same mail id. The same mail id is being continued in the present appeal proceedings as per the Form No.35 filed by the appellant. 6.5 At this juncture, it may be noted that the assessee did not offer any accepta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee to ask for extension of time to comply with the notices in furnishing the information. Subsequent compliance to the notices or compliance with the subsequent notices calling for the same information would not be a concern while deciding the penalty imposable u/s 272A(1)(d). The taxpayer is expected to furnish the information as called for in the notice issued u/s 142(1) or seek the adjournment with filing the reasons for such adjournment on or before the due date specified in the notice issued u/s 142(1) (v) Even during the course of appellate proceedings, the assessee has not adduced any evidence to demonstrate that there was reasonable cause for her failure to comply with the statutory notice issued u/s. 142(1) of the Act within the meaning of Sec.273B of the Act. There is also a complete non-compliance to the notices issued u/s 250 of the Act. Till now, the appellant had been served with 5 notices. Whereas, there is an occasional response for the appeal proceedings pending as on date on quantum appeal filed against the additions made u/s 143(3) at the same time no compliance for the appeal proceedings on hand. This shows that the appellant is not much concerned ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s belatedly complied with on 04/11/2019 and 08/11/2019. Penalty u/s 272A(1)(d) is leviable on complete failure to reply and not on delayed reply. 5. That the appellant craves leave to reserve to itself the right to add, alter, amend, substitute, withdraw and/or any ground(s) of appeal at jor before the time of hearing. 6. To support various contentions raised by the ld. AR, he has relied upon the relevant written submission and the same is reproduced herein below. The penalty amounting Rs. 20000/- u/s 272A(1)(d) has been levied by the Assessing Officer for non-compliance to the notices issued u/s 142(1) of the Act and the same was upheld by Ld. CIT(A). Appellant makes following submissions in support of Grounds: 1. Following is the tabulation of notices issued and respective compliance: Date of Issuing notice Due date of compliance Date of Compliance by assessee Notice issued u/s Acknowledgement No. of reply at the Income Tax portal 29/08/2018 04/09/2018 03/09/2018 143(2) 03091810300987 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 01/11/2019 for the notices of those clients where the first notices were issued u/s 143(2)/148. He came across the notices and informed the assessee about them. It was only after such communication that the assessee came to know about the notices of ongoing assessment proceedings. Thereafter, the assessee filed the replies vide letter dated 02/11/2019, 04/11/2019 and 08/11/2019. Though the last date fixed for submission was 11/11/2019, but the assessee without waiting for the last date, completed the last filing on 08/11/2019 itself, and asked the Ld. AO to `Please raise further queries, if any . The Assessment was completed under section 143(3) of the Act vide order dated 16/12/2019. The facts narrated above would show that the assessee has not wilfully ignored the notices issued by the Assessing Officer. The non-compliance of the notices issued under section 142(1) of the Act was for the bonafide reasons explained above. 6. Ld. AO had erred in levying the penalty also. Appellant takes the liberty to reproduce the provisions of said Section: 272A. (1) If any person, (d) fails to comply with a notice under sub-section (1) of section 142 or sub-section (2) of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perused the material placed on record. It is not disputed that the assessee has participated in the assessment proceedings and ultimately the order has been passed u/s 143(3) of the Act. The only notice with the remained uncompiled which is on account of the fact that the assessee is a lady not accustomed and has to depend on the others. We have also persuaded the decision of the Mumbai Co-ordinate Bench, in the case of Triumph International Finance Ltd. vs. DCIT, Central Circle-07(1), Mumbai in ITA No. 1870/Mum/2020 dated 10/03/2022 submitted that considering the fact of the case relied upon and facts of case are similar and therefore, the decision taken in that case squarely applicable to the facts of this case. The same is reproduced herein below:- 4. We have heard the submissions made by rival sides. The Assessing Officer vide order dated 21/12/2019 has levied penalty of Rs.10,000/- under section 272A(1)(d) of the Act for non-compliance of the notice issued under section. 142(1) of the Act. Undisputedly, no explanation was furnished by the assessee before the Assessing Officer for non-compliance of the notice under section 142(1) of the Act. As per the contentions of ld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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