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TMI Blog2024 (12) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(1)(b), and the appeal of the assessee was dismissed by ld. CIT(A). CIT(A) did not even called for assessment records nor called for records from the AO wrt penalty levied u/s 271(1)(b), and dismissed the appeal of the assessee, without verifying the contentions and explanations of the assessee. CIT(A) did not specify as to non-compliance of which of the notices u/s 142(1), the ld. CIT(A) is upholding the penalty. It is well settled that power of CIT(A) are co-terminus with the powers of the AO. As assessee has given reasonable explanation for not attending the hearing before the AO and keeping in view the provisions of section 273B read with section 271(1)(b) of the Act, accept the contentions of the assessee and delete penalty. X X X X Extracts X X X X X X X X Extracts X X X X ..... n so far as condonation of delay in filing appeal. I am of the considered view that this delay of 24 days in filing this appeal belatedly with ITAT needs to be condoned. The assessee has shown sufficient and reasonable cause in filing this appeal belatedly with ITAT. If substantial justice and technical considerations are pitted against each other, courts will lean towards advancement of substantial justice unless malafide is at writ large on the part of the litigant. I do not find any mala fide on the part of the assessee in filing this appeal belatedly with the Income-tax Appellate Tribunal. I further observe that the assessee is not likely to gain anything by filing the appeal belatedly by 24 days. I have also observed that the assessee has filed its appeal before ld. CIT(Appeals) in time, and has also prosecuted the matter before ld. CIT(Appeals) in the first appellate proceedings. The assessee is also persuing this appeal filed with ITAT, as ld. Counsel for the assessee Shri S C Jain, CA attended the hearing before ITAT (Physical/Virtual Mode)on 25.04.2024, 29.04.2024 and 21.11.2024. The assessee has also persued its quantum appeal before ITAT, wherein significant relief was g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order. Thereafter, notice u/s. 271(1)(b) dated 14.11.2017 was stated to be issued by the AO for non-compliance of notice dated 04.10.2017, and the and the assessee was asked by the AO as to why penalty u/s. 271(1)(b) may not be imposed. The date of hearing was fixed for 12.12.2017. The assessee neither appeared before the Assessing Officer on 12.12.2017 ie. The date fixed for compliance of notice u/s 271(1)(b) dated 14.11.2017 issued by the AO nor filed any adjournment application before the AO (the assessee is disputing that the assessee never received notice u/s 271(1)(b) dated 14.11.2017). Thus, the AO keeping in view that there is non-compliance of notices u/s. 142(1) dated 04.10.2017 and 03.11.2017 by the assessee in quantum re-assessment proceedings, imposed penalty of Rs. 10,000/- on the assessee u/s. 271(1)(b) of the Act (as is discernible from re-assessment order, the penalty u/s 271(1)(b) was initiated for non compliance of notice u/s 142(1) dated 04.10.2017, but the AO levied penalty for non compliance of notices u/s 142(1) dated 04.10.2017 and 03.11.2017). 4. Assessee filed first appeal before ld. CIT(Appeals) and submitted in Form No. 35 in statement of facts as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that the assessee has stated that he is engaged in the retail business of sale of spare parts, computer repairing and services at Sanjay Place, Agra in the name and style of Raj Computers Services. The assessee was noncompliant during the course of assessment proceedings, and has failed to submit any reply in response to the notices issued u/s. 142(1) and the reassessment order u/s. 147/144 of the Act was passed on 14.11.2017, and hence, the assessee has wilfully defaulted in complying with the statutory notices issued by the AO during re- assessment proceedings, and the order of the AO levying penalty u/s 271(1)(b) of Rs. 10,000/- for the failure to comply with the notice u/s 142(1) was confirmed by ld. CIT(Appeals) as the assessee failed to comply without any reasonable cause( the ld. CIT(A) has not stated in its order as to which of the non-compliances of notices u/s 142(1) i.e. dated 04.10.2017 or 03.11.2017, the penalty u/s 271(1)(b) is confirmed). 5. The assessee being aggrieved has now filed second appeal before the Tribunal. The assessee has filed paper book containing 10 pages, which is placed on record in file. Ld. Counsel for the assessee, Shri S C Jain, CA appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2017 u/s 142(1) issued by the AO fixing the date of hearing on 25.10.2017, that there was no compliance by the assessee and/or his counsel on 25.10.2017 due to strike by Taxation Bar Association, Agra. In my considered view, the assessee cannot be penalised for the strike called by Taxation Bar Association, Agra. The AO issued fresh notice u/s. 142(1) on 03.11.2017 fixing the date of hearing for 13.11.2017. Statement has been made by the assessee and his counsel before the ld. CIT(Appeals) (Statement of fact in Form No. 35) as well as before me that on 13.11.2017, counsel of the assessee Shri S C Jain, CA was out of town due to quality review work as Technical Reviewer of a firm of CA in Bangalore, and in fact it is claimed that the assessee himself appeared before the Assessing Officer on 13.11.2017 requesting for adjournment, but the Assessing Officer did not granted adjournment nor received the adjournment application carried by the assessee to the office of ITO on 13.11.2017. Further, it is stated that even cause register was not available to mark attendance in the office of ITO on 13.11.2017. It is claimed that the AO acted in haste and passed re-assessment order u/s 147/14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the assessee has claimed that it was never received by him, and the AO imposed penalty ex-parte u/s 271(1)(b) of Rs. 10,000/- vide penalty order dated 07.05.2018, and hence principles of natural justice are clearly breached and the assessee is condemned un-heard by the AO. Further, it is observed that the ld. CIT(A) did not verify the contentions and explanations submitted by the assessee wrt to non compliances to the notices issued u/s 271(1)(b), and the appeal of the assessee was dismissed by ld. CIT(A). The ld. CIT(A) did not even called for assessment records nor called for records from the AO wrt penalty levied u/s 271(1)(b), and dismissed the appeal of the assessee, without verifying the contentions and explanations of the assessee. The ld. CIT(A) did not specify as to non-compliance of which of the notices u/s 142(1), the ld. CIT(A) is upholding the penalty. It is well settled that power of ld. CIT(A) are co-terminus with the powers of the AO. Thus, keeping in view of the entire facts and circumstances, I am of the considered view that the assessee has given reasonable explanation for not attending the hearing before the AO on 25.10.2017 and 13.11.2017 and keeping in view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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