TMI Blog2020 (5) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... y that the assessee has not signed the consent waiver form. Consent waiver form was addressed to the HSBC Bank Geneva Switzerland and when the information itself did not mention such bank account, then where was the default of the assessee. It could be very difficult to justify the levy of penalty for non compliance of notice u/s. 142(1), firstly, when the scope of inquiry by the AO is circumscribed to material found during the course of search; and secondly, there is no specific information or document that the assessee was maintaining any account with HSBC Bank Geneva Switzerland. There is no provision u/s.142(1) that assessee is required to sign the document thrust upon him when the assessee himself has denied the content of the document and denied having maintaining such bank account. Penalty u/s. 271(1)(b) is leviable only when there is failure on the part of the assessee to comply with the notice issued u/s.142(1). Here there is no failure on part of the assessee for non compliance as assessee has duly replied and filed submission before the AO and also before the Ld. CIT (A). The assessee thus can produce any such document or account, which is necessary for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of by way of this consolidated order. 2. The facts in brief are that the assessee is an individual deriving income from salary, Short Term Capital Gain and income from other sources. A search and seizure action u/s.132(1) was carried out in the case of the assessee on 20.01.2012 and in pursuance of such action, notices u/s.153A was issued on 17.10.2012 for six Assessment Years prior to the year in which search took place and also for the year of search. In response to such notices for all the impugned assessment years, the assessee has filed the return of income declaring the same income as shown in the earlier return of income. During the course of assessment proceedings, a notice u/s. 142(1) was issued to the assessee on 18.07.2013 requiring the assessee to file certain information in respect of HSBC bank account, Geneva Switzerland. The relevant content of the notice which is common for all the years is reproduced hereunder:- F.No. ACIT/CC-18/2013-14/75 Sh. Anurag Dalmia, IInd Floor, Indra Prakash Building, 21, Barakhamba Road, New Delhi PAN: AADPD9439D Sir, Sub: Assessment Proceedings- requisition of information u/s. 142(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 153A of the Income Tax Act,1961 I am in receipt of your communication No. F. No. ACIT/CC- 18/2013- 14/81 dated 18.7.2013 requiring me to submit information u/s 142(1) of the Income Tax Act, 1961 with regard to certain informations claimed to be available with the department in relation to alleged accounts in HSBC, Geneva, Switzerland, and is surprised to note the contents thereof. In this connection, I would like to submit that I have no connection with any of the alleged accounts and transactions detailed in your notice and deny that any of these accounts, transactions or codes belong to me. Since, these transactions, accounts or codes do not belong to me, there is no question of my receiving any information from HSBC banks, Switzerland, or my submitting any of the details called for in your above referred letter, and also signing any consent letter in this regard. It is further submitted no proceedings u/s 153A are pending for Asstt. year 2012-13. 4. Thereafter, the ld. Assessing Officer issued a show cause notice for levy of penalty u/s.271(1)(b) and in response to which the assessee vide letter dated 30th September, 2013 has submitted his reply as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the assessments passed u/s.153A/143(3) are not sustainable as the same was beyond the scope of proceedings u/s.153A. The Tribunal has given a very categorical finding that no material or evidence was found either during the course of search or later that assessee was having any bank account with HSBC, Geneva Switzerland. Even in the statement recorded u/s.132(4), the assessee has not only categorically denied that he has never maintained any bank account in HSBC, Geneva Switzerland but also during the course of the entire assessment proceedings or investigation proceedings no such documents was shown or produced that assessee was having any bank account with HSBC bank Geneva Switzerland. Regarding the details of information as mentioned in the assessment order, Mr. Bindal submitted that from the bare perusal of the document, it can be seen that there is no mention about HSBC Bank, Geneva Switzerland, and therefore, the information available with the Department prior to the date of search was irrelevant. Even during the course of search, no material or evidence was found to rebut the stand taken by the assessee and during the course of the assessment proceedings also assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted with any specific information that assessee had any account in HSBC, Geneva Switzerland. Secondly, assessee from the day one has categorically denied maintaining any bank account and once assessee has denied having any bank account then there was no question of signing any waiver form. Under these circumstances, if assessee has not signed the consent waiver then there is a reasonable cause that he was required to do so. The ld. counsel submitted that even till date the Revenue could not produce any information or document showing that assessee was maintaining any bank account with HSBC Geneva Switzerland almost 9 years have lapsed. Once there is no such information available with the Assessing Officer arrived from the date of search till date, then how assessee can be held to be in default for not signing the consent waiver form. Accordingly, he submitted that penalty levied by the Assessing Officer u/s. 271(1)(b) and confirmed by the Ld. CIT(A) is factually illegal and same deserves to be deleted. He has also cited many judicial precedents and decisions, however, the same were not being reproduced hereunder. 11. On the other hand, ld. DR submitted that from the bare perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HSBC Bank Account Geneva Switzerland. Even during the course of search when assessee was confronted with this fact, he under the statement on oath stated that he has never opened any bank account in overseas and he denied having maintained such account. This stand has been taken all throughout the proceedings. Even in the statement recorded u/s 132(4) during the course of search, there was no mention of account in HSBC Bank Geneva Switzerland nor was any such information or material confronted to the assessee with the details of particular bank account till the date of initiation and levy of penalty. In response to the said notice u/s. 142(1), the assessee has reiterated the same and has duly complied with in his reply to the Assessing Officer. It is pertaining to note here that in the quantum proceedings from the stage of the Tribunal the entire addition stands deleted on the ground that the same were beyond the scope and ambit of Section 153A. 13. Section 142(1) empowers the Assessing Officer to call for any information or document for the purpose of making an assessment. If scope of the assessment as per the law laid down by the Hon ble Jurisdictional High Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om a plain reading of Section 142(1), it envisages that, for the purpose of making the assessment the Assessing Officer may serve notice to the assessee, either to: firstly, to file return of income where person has not made a return within the time allowed; or secondly, to produce or cause to produce such documents or accounts as Assessing Officer made require or; lastly, to furnish in writing and verify in the prescribed manner the information in such form and such point as the Assessing Officer may require. The assessee thus can produce any such document or account, which is necessary for the purpose of making an assessment; or if assessee is having such account or document, then if required by the Assessing Officer, he has to file or produce the same. However, if assessee is neither having such document nor she was in possession of any such document or is denying the document, then where is the question of default on the part of the assessee in terms of Section 142(1). Nowhere Section provides that the assessee has to create a document for furnishing it before the Assessing Officer what is contemplated is that whatever the information or document or account is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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