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TMI Blog2014 (3) TMI 538X X X X Extracts X X X X X X X X Extracts X X X X ..... g penalty passed by the ld Assessing Officer u/s 271(1)(b) is illegal, bad in law, without jurisdiction, time barred and wrong on facts. 2(a) That on the facts and circumstances of the case and the provisions of law, the ld CIT(Appeals) has failed to appreciate that the notice issued u/s 142(1) dated 01.11.2010 of the Income Tax Act, 1961 for the Assessment Year 2009-10 fixing the case for hearing on dated 10.11.2010, was not properly served on the appellant company as per the relevant provisions of law; hence bad in law and consequently, penalty proceedings were wrongly initiated and the penalty of Rs. 10,000/- levied by the Assessing Officer and confirmed by the ld CIT(Appeals) for not attending the office of the Assessing Officer on 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10,000/- u/s 271(1)(b). 4. Brief facts of the case is as follows. A penalty of Rs. 10,000/- was imposed by the Assessing Officer since the assessee failed to appear before the Assessing Officer on 10.11.2010 even after receipt of notice u/s 142(1) dated 01.11.2010. From a perusal of the penalty order it is noticed that the assessee did not even respond to the notice served u/s 271 (1)(b) issued on 31.12.2010, asking the assessee to show cause as to why penalty should not be levied for its failure to comply with the statutory notice u/s 142(1). Thereafter, the Assessing Officer issued another show cause notice u/s 271(1)(b) on 06.06.2011, in response to which the assessee filed a letter on 16.06.2011, claiming that no notice u/s 143(2) ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id assessment getting time barred does not arise on 31.12.2010. And moreover, there were several cases which were being handled by the assessee's AR getting time barred on 31.12.2010, so, the AR of the assessee requested for an adjournment to the Assessing Officer to fix the instant case in the month of January or February 2011; and he bonafidely believed that the Assessing Officer would grant him the said adjournment, since the request was reasonable. 7. In order to prove his said contention, he drew our attention to Page No. 8 of the PB, which is a letter dated 16.11.2010 from the assessee to the Assessing Officer in response to the notice u/s 142(1) dated 01.11.2010, in which it was clearly stated by the assessee that his AR Shri H. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciples of natural justice because the assessee did not care to represent himself on 10.11.2010 and also failed to even respond to the show cause issued before penalty proceedings was initiated by notice dated 31.12.2012. Only vide letter dated 16.06.2011 the assessee for the first time responded to the said show cause notice. Thus the ld DR contended that the assessee deliberately did not appear before the Assessing Officer or represent through an authorized representative. This according to the ld DR is a clear violation of law and the imposition of penalty is valid in the eyes of law. 8. We have heard the rival submissions and have perused the records. We find that the statutory notice was served on 01.11.2010 for the Assessment Year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeded to estimate the income of the assessee u/s 144 of the Act. The said reasoning of the Assessing Officer to hastily pass the order u/s 144 itself was on an erroneous assumption that the assessment is getting time barred. The ld AR's request for adjournment is on record and we find that the reason given by the Assessing Officer not to give adjournment was clearly on an erroneous basis and moreover, the AR of the assessee could not represent before the Assessing Officer on 10.11.2010, since he was pre-occupied with matters getting time barred, so we find there was reasonable cause for the assessee not to have attended before the Assessing Officer on 10.11.2010. Therefore we set aside the order of the ld CIT(A) and allow the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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