TMI Blog2013 (4) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1961. Such order is passed without considering the submission made before him as well as without considering facts and circumstances of the case. Accordingly, penalty levied U/s.271 (1) (b) of Income Tax Act, 1961 of ₹ 10,000/- should be cancelled. 2.Your appellant craves to add, alter, or amend any of the grounds of appeal on or before the date of hearing of appeal. 2. The facts in all these appeals are same and these appeals also have been decided by Ld. CIT(A) with a consolidated order, therefore, for the sake of convenience we proceed to decide all the appeals by this consolidated order. 3. Notice of hearing was sent to assessee through RPAD. However, on the fixed date of hearing none was present on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 271(1)(b) of Income Tax Act, 1961(the Act), the reply of the assessee was that notice under section 142(1) dated 1/10/2009 asking to attend on 26/10/2009 was received by her. On the said date an adjournment was sought and it was informed that fresh notice will be issued in this matter. Along with the said reply copy of adjournment letter was also filed. Thus it was submitted that there was no non-compliance of the statutory notice and proceedings under section 271(1)(b) should be dropped. However, A.O has rejected such explanation of the assessee on the ground that the reply filed by M/s. Malpani Associates, Chartered Accountants is not satisfactory and is not acceptable. Stating the reason, AO has observed that M/s. Malpan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was the obligation of the assessee to show reasonable cause and AO is not required to establish contumacious conduct on the part of the assessee and deliberate defiance of law. In absence of any evidence or material to show that why the assessee did not make compliance of the notices, therefore, penalty was leviable. Ld. CIT(A) has relied upon the decision of Hon ble Supreme Court in the case of K.P.Madhusudanan vs. CIT, 251 ITR 99(SC), wherein it has been held that mens-rea is not required to be proved in the case of penalty leviable under section 271(1)(c). Ld. CIT(A) has also referred to various decisions inter-alia including decision of Hon ble Supreme Court in the case of Union of India Others vs. Dharmendra Textiles Processors, 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncealment penalty. However in the present case what has to be considered is levy of penalty under section 271(1)(b) which is nothing to do with levy of concealment penalty for which strict law is applicable. On the penalty leviable under section 271(1)(b) the decision of Hon ble Supreme Court in the case of Hindustan Steel Ltd. vs. State of Orissa (supra) is applicable. According to the ratio of this decision, penalty should not be imposed unless the party obliged, either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. In our opinion there is no material on record according to which it can be said that assessee has either acted deliberately in defia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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