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TMI Blog2019 (1) TMI 1568X X X X Extracts X X X X X X X X Extracts X X X X ..... s involved in all these appeals are common and the common issue relates to the levy of penalty u/s 271(1)(b) of the Act at Rs. 10,000/- for non-compliance to the notice issued u/s 142(1) of the Act. 4. Brief facts of the case are that a search u/s 132 of the Act was carried out on the premises of the assessees at Gwalior on 07.01.2016. Subsequent to search notice 153A of the Act were issued which was followed by issuance of notice u/s 142(1) of the Act duly served upon the assessee but there was non-compliance to this notice for which Ld. Assessing officer initiated penalty proceedings u/s 271(1)(b) of the Act and thereafter giving proper opportunity to the assessee of being heard decided to levy penalty of Rs. 10,000/- in each of the cases under appeal before us. 5. Aggrieved the assessee preferred an appeal before the Ld. CIT(A) but failed to succeed. 6.Now all these assessee(s) are in appeal before the Tribunal raising common issues against levy of penalty u/s 271(1)(b) of the Act. 7. Ld. counsel for all these assessees commonly submitted that all the assessee(s) were prevented for reasonable cause for nonappearance because copies of seized documents was given very late ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been made on account of cash found during the course of the search. Thus, in the case of Sunit Madhok too, no adversity could be presumed due to non-compliance of the impugned notice under s.142(1). 10. Per contra. Ld. Departmental Representative(DR) supported the orders of both the lower authorities. 11. We have heard rival contentions, considered the facts, perused the material placed before us and carefully gone through the judgments. The common issue raised in all these 47 appeals are at the instance of assessees being aggrieved with the finding of Ld. CIT(A), confirming the levy of penalty of Rs. 10,000/- u/s 271(1)(b) of the Act for non-complying to notice issued u/s 142(1) of the Act. We find that subsequent to the search u/s 132 of the Act at the premises of assessee(s) on 07.01.2016 at Gwalior notices u/s 153A of the Act were issued followed by notice u/s 142(1) of the Act duly served upon the assessee to reply to various questions/issues raised by the assessing officer. There was no compliance to this notice u/s 142(1) of the Act which prompted the assessing officer to invoke the provisions of section 271(1)(b) of the Act and subsequently levied of penalty of Rs. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Coordinate Bench Indore in another case of Hemant Kumar Soni & Ors. Vs. DCIT (2017) 49 CCH 0350 dated 16.01.2017 which reads as follows: "We have heard rival contentions of both the parties and perused the material available on record. We find from the assessment orders in all these group appeals that the assessments have been completed u/ s 143(3) of the IT. Act. We find that the Assessing Officer has levied penalty 271(1)(b) for non-appearance on 15.10.2015. As per ld. Authorized Representative of the assessee, the assessees' counsel appeared and stated categorically that he appeared for seeking time. The counsel regularly attended the proceedings and the assessments have been framed u/ s 143(3) and not u/ s 144. We find that this was the first notice for compliance and since the voluminous records and papers were required to be scrutinized and individually in each case, the appropriate replies were to be filed, the assessee prayed for the time to submit the reply and ultimately submitted all the necessary replies and cooperated with the Department. We are of the view that assessees had reasonable cause for non-appearance on that day. Therefore, there is no justificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice u/s 142(1) of the Act and he did not appear during the course of assessment proceedings also and therefore assessments were framed ex-parte u/s 153A r.w.s. 144 of the Act. However, it is pertinent to note that the copies of the loose papers were not available with him on the designated dates for making compliance u/s 142(1) of the Act. Except for A.Y. 2016-17 assessments for A.Y. 2010-11 to A.Y. 2015-16 have been completed by Ld. Assessing officer accepting the returned income which itself shows that the details of income filed by the assessee in return of income filed in pursuance to notice u/s 153A of the Act were sufficient for the assessing officer to frame the assessment and he needed no other explanation/ information/documents to complete the assessment. However, for A.Y. 2016-17 an addition of Rs. 16,20,000/- has been made on account of cash found during the course of search. Immunity from paying the penalty in certain cases is provided u/s 273B of the Act which reads as follows: 273B. Notwithstanding anything contained in the provisions of [clause (b) sub section (1) of ] [section 271, section 271A, [ section of section 271B [section 271BA] [ section 271BB] secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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