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Rajesh A. Yagnik Versus Assistant Commissioner of Income-Tax

2016 (8) TMI 652 - ITAT MUMBAI

Penalty under section 271(1)(c) - unsigned penalty order - Held that:- Undisputedly, on verification of the original penalty order under section 271(1)(c) communicated to the assessee, which was produced for verification of the Bench, it is noticed that though it bears the official seal of the Assessing Officer but there is no signature of the Assessing Officer on the body of the order. The assessee has also filed an affidavit clearly and categorically stating therein that the unsigned penalty o .....

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of the penalty order. In fact, the Department has failed to conclusively prove the fact that the penalty order communicated to the assessee was signed by the Assessing Officer, whereas the assessee not only has produced the original unsigned penalty order received from the Assessing Officer but also filed an affidavit in support of such claim. In our view, in the absence of any contrary evidence brought to our notice, we are inclined to accept the assessee's version that the penalty order receiv .....

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1. The instant appeal by the assessee is directed against the order dated March 18, 2014, passed by the learned Commissioner (Appeals)- 28, Mumbai, confirming the imposition of penalty under section 271(1)(c) of the Income-tax Act, 1961 (for short "the Act") for the assessment year 2008-09. 2. Brief facts are, the assessee an individual filed his return of income for the impugned assessment year on September 29, 2008, declaring total income of ₹ 17,57,650. In the course of asses .....

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g Officer initiated proceedings for imposition of penalty under section 271(1)(c), alleging furnishing of inaccurate particulars of income. In response to the show-cause notice issued by the Assessing Officer under section 274 read with section 271 of the Act, though the assessee objected to initiation of penalty proceedings, however, the Assessing Officer rejecting the explanation of the assessee, proceeded to pass an order imposing penalty of ₹ 2,26,075 under section271(1)(c). Being aggr .....

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ide letter dated March 7, 2014, the penalty order available in his record has been signed by the Assessing Officer. Further, the learned Commissioner (Appeals) also held that in the facts and in the circumstances of the case, the imposition of penalty under section 271(1)(c) is justified. Being aggrieved of the order of the learned Commissioner (Appeals), the assessee is in appeal before us. 3. The learned authorised representative reiterating the stand taken before the learned Commissioner (App .....

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direction of the learned Commissioner (Appeals) though the assessee made repeated requests in writing before the Assessing Officer to supply him a signed copy of the penalty order but all his requests fell in deaf ear. In support of such contention, the learned authorised representative drew our attention to the letters dated October 8, 2013, and November 20, 2013. He submitted, non-supply of signed penalty order by the Assessing Officer was also brought to the notice of the learned Commissioner .....

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der is not a valid order, hence, cannot be taken cognizance of, therefore, no penalty can be imposed on the basis of such an order. For such proposition he relied upon the decision of the Tribunal, Mumbai Bench in Vijay Corporation v. ITO (ITA No. 1511/Mum/2010, dated January 20, 2012). 4. The learned Department representative, on the other hand, relied upon the decision of the learned Commissioner (Appeals). 5. We have considered the submissions of the parties and perused the material available .....

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fficer. The claim of the assessee appears to be correct considering the fact that the assessee on more than one occasion has requested the Assessing Officer to supply a signed copy of the penalty order. This fact has also been brought to the notice of the first appellate authority during the pendency of the assessee's appeal. However, the learned Commissioner (Appeals) has dismissed/rejected the plea of the assessee in a mechanical and routine manner by accepting the version of the Assessing .....

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itude in communicating a signed copy of the penalty order. In fact, the Department has failed to conclusively prove the fact that the penalty order communicated to the assessee was signed by the Assessing Officer, whereas the assessee not only has produced the original unsigned penalty order received from the Assessing Officer but also filed an affidavit in support of such claim. In our view, in the absence of any contrary evidence brought to our notice, we are inclined to accept the assessee .....

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f Smt. Kilasho Devi Burman v. CIT [1996] 219 ITR 214 (SC) did not give any importance to the service of notice of demand duly signed but emphasised the requirement of the law that an order of assessment had to be signed for its validity. The Revenue authorities have, in the present case, proceeded on the footing that the requirement of law is complied with when a signed notice of demand exists or is served on an asses see. In our view, the question in the case before the hon'ble Supreme Cour .....

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w that the provisions of section 292B cannot come to the rescue of the Revenue. The provisions of section292B reads as follows : '292B. Return of income, etc., not to be invalid on certain grounds.-No return of income, assessment, notice, summons or other proceeding furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mista .....

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