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2015 (7) TMI 1234 - AT - Income TaxPenalty u/s 272A(2)(c) - validity of notice issue u/s 133 (6) - non complying with the requirement of the notice u/s 133 (6) but was not issued by the Assessing Officer or the DCIT(A) or Jt.CIT or CIT(A) - reasonable cause for the failure of the assessee to submit the report - Held that:- Since, the notice was issued by the ITO, it has to be seen that whether he is an assessing officer or not as per section 2 (7A) of the I. T. Act. As per this section, an ITO is also an assessing officer if he is vested with the relevant jurisdiction by virtue of directions or orders issued under sub section (1) or sub section (2) of section 120 or any other provisions of this Act. Hence, it has to be seen that whether in the present case, the ITO who issued the impugned notice was assessing officer or not as per these provisions of section 2 (7A) of the Act. Since, there is no finding of CIT (A) in this regard, the matter has to go back to CIT (A) for fresh decision after giving specific finding on this aspect of the matter if we find that the penalty is otherwise justified because if the penalty is not found to be justified for other reasons, this aspect will be of academic interest only and hence, no decision on this aspect will be necessary and therefore, in that situation, we will not restore the matter back to CIT (A). As submitted by the assessee that due to failure of the computer server of the branch of the assessee, the required report could not be submitted in time. In our considered opinion, it should be accepted as reasonable cause for the failure of the assessee to file report in time. As per section 273B, if the assessee can establish that there was reasonable cause for the failure of the assessee to submit the report, penalty u/s 272A (2) should not be imposed. Therefore, we delete the penalty because in our considered opinion, there was reasonable cause for the failure of the assessee to submit the report in time. - Decided in favour of assessee.
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