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2020 (5) TMI 460 - AT - Income TaxPenalty u/s 271(1)(b) - assessee has not complied with the notice u/s.142(1) - Assessment u/s 153A - assessee has not furnished the requisite information/document, i.e., complete bank statement as well as failure to give consent letter - HELD THAT:- Once there was no incriminating material, neither any such information was available with AO, then where is the question of roping such an addition or making such inquiry in the assessment proceedings. If there would have been any incriminating document pertaining to the alleged bank account found directly or indirectly linking the said bank account with the assessee during the course of search, then only the entire scope of inquiry for the purpose of assessment could have been made; and if there is no such incriminating material or seized document, then ostensibly assessment has to be confined to the seized document relating to the assessee. Here the information which was available prior to the date of search was itself vague in so far as there was no mention of any account with HSBC Geneva Switzerland for which AO has levied the penalty that the assessee has not signed the consent waiver form. Consent waiver form was addressed to the HSBC Bank Geneva Switzerland and when the information itself did not mention such bank account, then where was the default of the assessee. It could be very difficult to justify the levy of penalty for non compliance of notice u/s. 142(1), firstly, when the scope of inquiry by the AO is circumscribed to material found during the course of search; and secondly, there is no specific information or document that the assessee was maintaining any account with HSBC Bank Geneva Switzerland. There is no provision u/s.142(1) that assessee is required to sign the document thrust upon him when the assessee himself has denied the content of the document and denied having maintaining such bank account. Penalty u/s. 271(1)(b) is leviable only when there is failure on the part of the assessee to comply with the notice issued u/s.142(1). Here there is no failure on part of the assessee for non compliance as assessee has duly replied and filed submission before the AO and also before the Ld. CIT (A). The assessee thus can produce any such document or account, which is necessary for the purpose of making an assessment; or if assessee is having such account or document, then if required by the Assessing Officer, he has to file or produce the same. If assessee is neither having such document nor she was in possession of any such document or is denying the document, then where is the question of default on the part of the assessee in terms of Section 142(1). Nowhere Section provides that the assessee has to create a document for furnishing it before the Assessing Officer what is contemplated is that whatever the information or document or account is available with the assessee the same has to be produced before the AO. We are in tandem with the submission of Mr. Bindal that there is genuine and bona fide belief that the assessee was not require to sign the consent waiver form, because as per the averments made by assessee, he never had any kind of bank account in overseas leave alone HSBC Bank Geneva Switzerland; and secondly, nothing incriminating was found during the course of search wherein the assessee was found to be directly or indirectly involved in opening any bank account with HSBC Geneva Switzerland. If all these circumstances have been duly explained before the AO, then not signing of consent waiver form constitutes reasonable cause and therefore in terms of Section 273 B penalty is leviable. Accordingly, the penalty is deleted on this count also. - Appeals of the assessee are allowed.
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