TMI Blog2020 (8) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative failed to submit before the AO. Though there is non-appearance on part of the authorized representative at the second scheduled date of hearing, at the same time, the possibility of non-availability of the requisite documents as so required by the Assessing officer cannot be ruled out. In absence of these facts and without confronting the authorized representative, we are unable to accede to the contention of the assessee that merely because she has authorized a Chartered accountant, the entire fault lies with the Chartered accountant and assessee cannot be faulted as the non-compliance is by way of non-filing of the information/documents so sought by the Assessing officer and not limited to attending to the proceedings before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment year 2010-11 wherein he has partly sustained the levy of penalty U/s 271(1)(b) at ₹ 10,000/- as against ₹ 20,000/- imposed by the Assessing Officer. 2. None has appeared on behalf of the assessee however, an application received by the Registry on 27.01.2020 signed by Advocate Shree Chand Gupta wherein it was submitted that written submission may be considered for deciding the present matter. Accordingly, it was decided to hear this matter after considering the written submission of the assessee and hearing the ld. DR and material available on record. 3. In her written submissions, the assessee has submitted that the ld. CIT(A) while reducing the penalty has not properly considered and appreciated the assessee s wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances of the present case, no further relief should be granted in the instant case and the order of the ld CIT(A) may be affirmed and the appeal of the assessee be dismissed. 5. We have heard the rival contentions and perused the material available on record. It is noted that the penalty proceedings u/s 271(1)(b) were initiated during the assessment proceedings for non-compliance to two notices namely, notice u/s 142(1) dated 9.10.2017 and subsequent notice u/s 142(1) dated 31.10.2017 and thereafter, penalty was levied u/s 271(1)(b) for ₹ 20,000/- vide order dated 26.06.2018. On appeal, the ld CIT(A) has reduced the penalty to ₹ 10,000 apparently for the reason that subsequent default is continuation of the initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents before submitting to the Assessing officer or the assessee has subsequently submitted these documents to the authorized representative to be submitted to the Assessing officer which the authorized representative failed to submit before the Assessing officer. Therefore, we find that though there is non-appearance on part of the authorized representative at the second scheduled date of hearing, at the same time, the possibility of non-availability of the requisite documents as so required by the Assessing officer cannot be ruled out. Therefore, in absence of these facts and without confronting the authorized representative, we are unable to accede to the contention of the assessee that merely because she has authorized a Chartered accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how-cause dated 29.05.2018 and in response, the assessee submitted that the appeal has been filed against the assessment order before the ld CIT(A) and the matter may be adjourned till disposal of appeal by the ld CIT(A). However, the Assessing officer didn t accept the assessee s contentions and proceeded with levy of penalty u/s 271(1)(b) of the Act and the findings of the Assessing officer reads as under:- The reply filled the A.R. of the assessee is not genuine not acceptable, as the assessee has not made the compliances of the notice u/s 142(1) of the I.T. Act, 1961 dated 09.10.2017 31.10.2017 during the assessment proceedings. Hence, the AO has rightly initiated penalty proceedings u/s 271(1)(b) of the I.T. Act, 1961, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty. However, the Assessing officer without providing any such opportunity to the assessee, passed the penalty order. Therefore, on this ground itself, where there is lack of opportunity before levy of penalty, the penalty so levied deserved to be set-aside. Further, we find that there is no independent finding recording by the Assessing officer while levying the penalty and merely referring to the findings in the assessment order, he has arrived at a conclusion that the assessee has willfully not complied with the notices and not co-operated in finalizing the assessment proceedings. It is a settled position that assessment and penalty proceedings are two separate and distinct proceedings and though reference can be drawn to the findings i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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