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2015 (8) TMI 1023 - AT - Income TaxPenalty u/s.140A(3) r.w.s. 221 - assessee failed to pay self-assessment tax - CIT(A) deleted the addition admitting additional evidences - Held that:- In the instant case it is an undisputed fact that the assessee did not appear before the Assessing Officer despite repeated opportunities given by him. This act of assessee by ignoring the Assessing Officer is highly deplorable. However, considering the mishaps in the family caused due to the death of his parents within a very short span and the subsequent illness of his wife as stated before the CIT(A) and not controverted by the Revenue we are taking a liberal view of this action on the part of the assessee in not appearing before the Assessing Officer. However, it is also an admitted fact that the assessee before the CIT(A) has appeared and brought to his notice the chronology of events, i.e. the attachment of the accounts by the Assessing Officer and the sale of shares by the Assessing Officer held by the assessee in his demat accounts. From the various bank accounts produced by the assessee we also find that there is negligible or insufficient balances. Therefore, we find merit in the submission of the Ld. Counsel It has been held in various judicial decisions that levy of penalty by the Assessing Officer u/s.221(1) is discretionary and not automatic. Further, for levy of penalty u/s.221 such default must be wilful and not merely accidental. In the instant case, the assessee has proved beyond doubt that the default by him in not paying the self-assessment tax is not wilful and it was beyond his control as there was no sufficient money available with him to pay the self-assessment tax especially when the income is mainly from short term and long term capital gain. CIT(A) has not contravened any of the provisions by admitting any additional evidence. Further, it is the settled proposition of law that the powers of the CIT(A) are coterminous with that of the Assessing Officer. Since in the instant case the various documents produced before the CIT(A) were already before the Assessing Officer in the quantum proceedings, therefore, these documents in our opinion cannot per se be called as additional evidence. Therefore, the ground raised by the Revenue on this issue is dismissed. Thus the assessee has proved that the default was for good and sufficient reasons. Therefore, in view of the second proviso to section 221(1) this is not a fit case for levy of penalty u/s.140A(3) r.w.s. 221 of the I.T. Act. Accordingly, the order of the CIT(A) cancelling the penalty is upheld - Decided in favour of assessee.
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