TMI Blog2012 (5) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... sked by the A.O., the extreme step is taken to penalise these assessees by levying the penalty u/s.271(1)(b). In the present cases, nowhere it is alleged that the conduct of the assessees or their Chartered Accountant in the proceedings was deliberate defiance of law on their part. There was no justification on the part of the A.O. to levy penalty on all these assessees for the non-compliance by filing the details on 20.10.2009. Therefore, allow all these appeals filed by the assessees and delete all the penalties levied by the A.O. u/s.271(1)(b) of the Act. - ITA Nos.8656 to 8658/Mum/2011, ITA Nos.8660 to 8661/Mum/2011, ITA Nos.8663 to 8665/Mum/2011, ITA Nos.8666 to 8667/Mum/2011 and ITA No.8672/Mum/2011 - - - Dated:- 9-5-2012 - SHRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seizure operation these assessees were also covered. In consequence of search and seizure operations all these assessees have filed their returns of income in pursuance of the notices issued u/s.153A of the Income-tax Act. The assessment in the case of the assessees were completed u/s.143(3) r.w.s. 153A determining the total income as under: Sr. No. ITA No. Name of the Assessee A.Y. Total income as determined by the AO 1 8656/M/2011 Smt. Zeenat P. Sanghvi 2002-03 1,55,000 2 8661/M/2011 ..do.. 2003-04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10,000/- per assessment year before us for failure to comply to attend the hearing on 20.10.2009. In all these cases the reasons given by the A.O. for the levy of the penalty is verbatim which is as under: 5. The A.O. has observed that during the course of the scrutiny assessment proceedings, Shri Rajesh Shah, C.A., assessee s Authorised Representative (AR) was asked to file the details vide orderITAs. sheet noting dated 14.10.2009. The compliance was to be made on 20.10.2009. There was no compliance on that date and hence, the A.O. issued the letter on 22.10.2009 calling for the reasons why the penalty proceedings should not be initiated u/s.271(1)(b) of the Act. In sum and substance, as the assessee s Chartered Accountant did not compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 115WE or under sub-section (1) of section 142 or sub-section (2) of section 143 or fails to comply with a direction issued under sub-section (2A) of section 142, or . 8. So far as the assessment orders in all respect of these assessees are concerned, I find that there is not a single whisper by the A.O. that there was default on the part of the assessees to make compliance of any notices issued u/s.142(1) or 143(2) of the Act other than notice dt 14.10.09. In fact, on the perusal of the assessment order, I find that the assessee s Chartered Accountant Shri Rajesh Shah who was authorised to represent the assessee attended the assessment proceedings from time to time and filed the details called for by the A.O. These are observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. 9. In the present cases, nowhere it is alleged that the conduct of the assessees or their Chartered Accountant in the proceedings was deliberate defiance of law on their part. 10. In my opinion there was no ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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