TMI Blog2013 (9) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... notices issued by AO. Considering the repetitive failure and the lackadaisical approach of the assessee, we hold that ld. CIT(A) has rightly held that it cannot be said to be a reasonable cause for failure to comply with the notices issued by AO u/s 143(2)/142(1) of the Act - It cannot be said that if no fine is levied on account of committing the offence by one person, the other person should also not be fined for committing the same offence - Penalty confirmed - Decided against assessee. - I.T.A. No.528 to 530 and 532 to 534/Mum/2011 - - - Dated:- 28-8-2013 - Shri B. R. Mittal (JM) And Rajendra (AM),JJ. For the Appellant : Shri Ajay R. Singh For the Respondent : Shri Prakash Jha ORDER Per Bench: All these appeals are filed by assessee against common order of ld. CIT(A) dated 11.11.2010 for Assessment Years 2003-04 to 2008-09 vide which ld. CIT(A) has confirmed the order of AO levying penalty of Rs.10,000/- u/s 271(1)( b) of the Income Tax Act, 1961 (the Act) for each of the assessment year under consideration. 2. Since facts and the issue involved are same and these appeals are also arising out of a consolidated order of ld. CIT(A), we heard these appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. In the said written submissions, it was argued that specific adjournment request letter was filed on the date of hearing and letter of authority was subsequently filed. Ld. CIT(A) has stated that it was contended before him that penalty in the opinion of the ld. AR could not be imposed unless there is mens rea on the part of the assessee and placed reliance on the decision of Hon'ble Supreme Court in the case of Hindustan Steel Ltd. V/s State of Orissa (1972) 83 ITR 26 (SC). Ld. AR argued that penalty should be deleted. 5. Ld. CIT(A) after considering the submissions of the assessee has held that this is a fit case for levy of penalty u/s 271(1) (b) of the Act and no interference in the order of AO is warranted. We reproduce para 2.3.1 to 2.3.4 of the CIT(A)'s order as under : "2.3.1. I have carefully and dispassionately considered the facts and circumstances of the case, the impugned penalty orders U/s. 271(1)(b) dated 15/4/2010 and the arguments made by the Ld. Counsel before the undersigned. It is an admitted position that the Ld. Assessing Officer issued various notices U/s. 143(2) and 142(1) of the Act and the same were duly served upon the appellant directly. It is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hah (1993) 204 ITR 462 (Bom) stands overruled. (b) After introduction of the Explanation, the decision in the case of Sir Shadilal Sugar General Mills Ltd. v/s CIT 168 ITR 705 (SC), no more holds good and hence, fact that the assessee had agreed for the addition is no more relevant. The Explanation was introduced to meet such situations only. Moreover, after the introduction of the Explanation, the revenue has not to prove mens rea on the part of the assessee. (c) No express invocation of the Explanation to Section 271(1)(c) in the notice u/s. 271(1)(c) is necessary for applying the provisions of the said Explanation Therefore, in this case the Revenue had discharged its onus and it did not have to prove mens rea in this case . 2.3.2.2 Hon'ble Supreme Court three Members Bench in the case of Union of India and ors. V/s Dharmendra Textile Processors reported in (2008) 306 ITR 277 ruled that the object behind enactment of section 271(1)(c) read with Explanation indicate that the said section has been enacted to provide for a remedy for loss of revenue. Penalty u/s. 271(1)( c ) is a civil liability. Willful concealment is not an essential ingredient for attracting civil liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC p. 55, para 4) In this case Honorable Apex Court held that in the case of proceedings u/s. 271(1)(a), the intention of the legislature as to emphasise the fact of loss of revenue and to provide a remedy for such loss, an element of coercion is present in the penalty. Honorable Apex Court ruled that there is nothing in section 271(1)(a) which requires that mens rea must be proved before penalty can be levied. (e) Swedish Match AB vs. SEBI (SCC p. 671, para 113) Honorable Apex Court held that only in the criminal proceedings initiated against the appellants, existence of mens rea on the part of the appellants will come up for consideration. Mens rea is not an essential element for imposing penalty for breach of Civil applications or liabilities. 2.3.3. It is further noticed that the Department has found and seized several incriminating documents on the basis of which the appellant group has made substantial disclosure of unaccounted income. Having seen the relevant records, the appellant's defiance of various statutory notices and appellant's failure to furnish the necessary details have been noted. Having regard to the facts and circumstances of the case and after perusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the penalty confirmed by ld. CIT(A) for all the assessment years under consideration may be deleted. 7. On the other hand, ld. DR supported the order of ld. CIT(A). He submitted that the AO issued notice dated 25.8.2009 u/s 143(2) and 142(1) of the Act and the same was not complied with by assessee. He submitted that filing of adjournment application and that too by M/s Malpani and Associates without any authority letter from the assessee is as good as non appearance. AO has rightly considered that nobody attended on behalf of the assessee in response to the notices issued u/s 143(2) and 142(1) of the Act. He further submitted that AO again issued notice u/s 142(1) dated 12.10.2009 with questionnaire and fixing the date of hearing on 22.10.2009 and there was no response from the assessee to the said notice. That no documents were filed by assessee. He submitted that AO has again stated that an adjournment request was made by a letter from M/s Malpani and Associates without any authority letter. The ld. DR submitted that even in response to notice issued u/s 274 r.w. section 271(1)(b) of the Act fixing the date of hearing on 5.4.2010, the letter of adjournment was filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date on which the ld. CIT(A) has passed the impugned order confirming the action of AO of levy of penalty u/s 271(1)(b) of the Act. Considering the above facts we are of the considered view that there is deliberate defiance on the part of the assessee to comply with the statutory notices and to furnish requisite details. The contention of the assessee before the authorities below that there is no mens rea on the part of the assessee, we agree with the ld. CIT(A) that there is nothing in section 271(1)(b) of the Act which requires that mens rea must be proved before the penalty can be levied. Hence, mens rea is not an essential element for imposing penalty for non compliance of notices issued by AO. Considering the repetitive failure and the lackadaisical approach of the assessee, we hold that ld. CIT(A) has rightly held that it cannot be said to be a reasonable cause for failure to comply with the notices issued by AO u/s 143(2)/142(1) of the Act. The reliance placed by the ld. AR upon the case of assessee's wife Smt. Pramila K.Seth (supra) dated 25.4.2013 (supra) cannot be considered to be precedent to delete the penalty in the case of assessee before us as the levy of penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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