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2022 (9) TMI 1322 - AT - Income TaxPenalty u/s 271(1)(b) - assessee has made no response to the questionnaire, only adjournment has been filed, even when two months have elapsed from the date of issue of notice u/s 142(1) - assessment order was passed u/s 143(3) r.w.s. 153A - as per AO assessee has failed to comply with the notice without any reasonable cause and is therefore liable to be penalized u/s 274 r.w.s. 271(1)(b) - HELD THAT:- AO while framing the assessment order u/s 143(3) r.w.s. 153A of the Act, has himself mentioned in the assessment order that assessee submitted details and documents. Assessment order, u/s 143(3) r.w.s. 153A of the Act, was framed by assessing officer after getting the required documents and details. Therefore, we note that when the assessee has submitted the required details and documents during the scrutiny assessment proceeding and based on these details and documents, the Assessing Officer has framed the assessment on merit. In view of this, we note that there was no wisdom in the assessment order in respect of alleged non-compliance. Therefore, we note that when the AO has framed the assessment order u/s 143(3) r.w.s. 153A of the Act and assessment order has not been passed u/s 144 of the Act, therefore the penalty u/s 271(1)(b) of the Act, for non-compliance should not be levied. CIT(A) sustained penalty partly for second default - As penalty sustained by the Ld. CIT(A) is not in accordance with the provision of Section 271(1)(b) and clause (ii) of that Section. We note that Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim 'Expressio unius est exclusion alteris', meaning there by that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. See NAZIR AHMAD VERSUS KING EMPEROR (NO. 2) [1936 (6) TMI 11 - PRIVY COUNCIL],RAM PHAL KUNDU VERSUS KAMAL SHARMA [2004 (1) TMI 675 - SUPREME COURT] and INDIAN BANKS' ASSOCIATION AND OTHERS VERSUS DEVKALA CONSULTANCY SERVICE AND OTHERS [2004 (4) TMI 73 - SUPREME COURT] - Also see ORISSA RURAL HOUSING DEVELOPMENT CORPORATION LTD.[2011 (12) TMI 230 - ORISSA HIGH COURT] Thus CIT(A) has erred in sustaining the part penalty u/s 271(1)(b) of the Act, therefore order passed by the ld CIT(A) is not in accordance with the provisions of law. Appeal of assessee allowed.
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