1983 (10) TMI 105

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..... -1975, but the same was filed on14-3-1978and the assessment was completed on25-9-1978. In the assessment order, penalty proceedings for late filing of return under section 271(1)(a) were initiated and a show-cause notice dated14-2-1980was issued by the ITO fixing the case for21-2-1980which, according to the revenue, was served on the assessee on15-2-1980. The penalty order by the ITO was, however, passed on25-3-1981levying a penalty of Rs. 24,272 on the assessee under section 271(1)(a) for late filing of the return. 3. When the said penalty came to be disputed before the AAC, he, for the reasons given by him in his order, confirmed the penalty in a sum of Rs. 18,962. 4. It is this action of the AAC which is disputed by the assessee befo .....

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..... There was only an affidavit placed before the AAC, which he disbelieved and rightly rejected the same and confirmed the penalty. 5. After taking into consideration, the rival submissions and looking to the facts on record, we hereby cancel the levy of penalty. The affidavit given by one of the partners Mrs. Narinder Kaur, which is placed on the assessee's compilation at page 3, reads as under : " That I became a partner in the firm M/s. Textile Agencies with Mr. Harmanjit Singh, s/o Shri Pal Singh, w.e.f.1-4-1972and a regular partnership deed was executed on the same date, viz.,1-4-1972. 2. That the partnership business was of cloth merchants and commission agents. The entire investment in the business was made by me. 3. That the p .....

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..... placed before us by the revenue confirming service of the said notice. The submission of the learned departmental representative that the assessee does not refuse having received the assessment order which also bore initiation of penalty proceedings under section 271(1)(a), cannot be damaging to the contention of the assessee, because a show-cause notice for grant of opportunity is a 'must' in a case of levy of penalty under section 271(1)(a) and that is trite law by now. This also cannot be ignored that the penalty order was passed as late as on25-3-1981and this is not the case of the revenue that any other notice was served between20-2-1980to25-3-1981. Reliance of the assessee on the Calcutta High Court decision in the case of Calcutta Ta .....

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