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2023 (9) TMI 1034 - ITAT DELHIPenalty order u/s 272A(1)(d) - non-cooperative attitude of the assessee - As argued penalty orders have been passed without application of mind as the orders do not disclose as to which notice was not complied with - as submitted that the assessments are completed u/s 153(C) and not u/s 144 as such there cannot be any penalty for non-compliances - HELD THAT:- The penalty order does not mention as to which notice and under what provisions of law was issued, how served and which was not responded by the assessee. As the matter of fact, the assessments have been completed u/s 153C of the Act and no adverse inference was drawn against the assessee to pass an order on best judgment basis u/s 144C. The respective assessment orders cited before us in PB also do not show that if at the time of assessment. Ld. AO had made observation as to which specific document or information sought was not supplied. It appears from the penalty orders that the dispute was with regard to some external hard disc which was sought to be produced but was not produced by the assessee on the basis that it was not readable or corrupt and on that basis the AO issued notice at the time of conclusion of assessment. Unless it is established in the assessment order or even under the penalty order that at the time of assessment proceedings itself, Ld. AO had formed opinion that there was intentional non-compliance justifiying issuing notice u/s 271(1)(d) or u/s 272A(1)(d) of the Act, Ld. AO is not justified to levy penalty. Ld. CIT(A) has also sustained the addition on the basis of ‘non-cooperative attitude’ of the assessee. To the mind of this Bench, ‘non-cooperative attitude’ as such in itself cannot be the basis of imposing penalty under the relevant section, as above, without specifically bringing on record the specific notices, their specific non-compliances and the satisfaction of the ld. AO recorded during the assessment proceedings that there has been failure to comply with the said notice for which imposing penalty is warranted. Decided in favour of assessee.
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