TMI Blog2015 (12) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... i Mahendra Nahata, Chairman of the appellant company in his statement recorded on 13.12.2007 stated that "The company keeps back up data, which will be compiled to prepare the accounts for the years for which the department is unable to a access the accounts in the server." This also shows cooperation and obedience on the part of the assessee company. Hence, penalty can be imposed upon the assessee on the allegation of non-compliance of the notice u/s 131 of the Act and the Assessing Officer was not correct in passing penalty order imposing penalty of ₹ 10,000 u/s 272A(1)(c) of the Act. In this situation, we are inclined to hold that the CIT(A) was not justified in confirming the penalty and hence impugned first appellate order cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rguments of both the sides and carefully perused the relevant material placed on record, inter alia penalty order of the Assessing Officer, impugned order, paper book filed by the assessee, spread over 12 pages and relevant part of the assessment order dated 29.12.2009. 4. At the very outset, from operative part of the penalty order, we note that the penalty has been imposed by observing as under:- From the above discussion, it is evident that all the preconditions for application and imposition of penalty have been squarely met and it can be reasonably concluded that there is animus i.e. conscious avoidance on the part of the assessee Company to not produce the books of accounts in response to the summons u/s 131 of the Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Inv.), Unit-V, New Delhi and the appellant on the issue. The appellant has not co-operated with the Investigation Wing and has not furnished the books of accounts asked for. The appellant's submission that the account books were in the server seized by the Income-tax Department is also not a verifiable fact as the account books were never accessed in Investigation Wing even with the help of employees of the appellant company. In his statement, Sh. Mahendra Nahata, Chairman of the appellant company had clearly stated that The company keeps back up data, which will be compiled to prepare the accounts for the years for which the department is unable to access the accounts in the server. Despite repeated opportunities, the appellant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the books of accounts at the time of search, during post search inquiries and during assessment proceedings, hence letter given by the assessee is not treated as valid proof of producing of books of accounts. Ld. AR placing reliance on the order of the ITAT, Ahmedabad 'A' Bench dated 31.10.2011 in the case of Tarachand S. Kasat HUF vs DCIT in IT(SS)A No.196/Ahd/2011 and other related appeals, submitted that when assessee has submitted account books during assessment proceedings, then non-compliance of the notice cannot be attributed to the assessee and penalty u/s 272A(1)(c) cannot be imposed in the situation of bonafide compliance on the part of the assessee specially when no prejudice has been caused to the revenue and the delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty will be justified in refusing to impose penalty where there is a technical or venial breach of the provisions of the taxing statute. In the present case, when the assessee is able to establish that the account books were produced during assessment proceedings, however with some delay, then it is a technical/venial breach of the provisions of the Act and penalty cannot be held as correct and justified. 9. It is also relevant to note that undisputedly Shri Mahendra Nahata, Chairman of the appellant company in his statement recorded on 13.12.2007 stated that The company keeps back up data, which will be compiled to prepare the accounts for the years for which the department is unable to a access the accounts in the server. This also ..... X X X X Extracts X X X X X X X X Extracts X X X X
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