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TMI Blog2021 (4) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... s 142(1) alongwith questionnaires were issued to the assessee and case was fixed for hearing on 23.08.2018. On 07.09.2018 show cause notice of penalty u/s 271(l)(b) was issued for A.Ys. 2011-12 to 2 0 1 7 - 1 8 and case was fixed on 1 4 . 0 9 . 2 0 1 8 . In compliance to the said notice the assessee filed copy of ITR and bank statement only. Another notice u/s 142(1) dated 05.10.2018 was issued to the assessee for a p p e a r i n g on 25.10.2018 with details enclosed with notice. However, no compliance was made by assessee even to this notice for all these assessment years. The AO, therefore, issued show cause notice to the assessee asking him to explain as to why penalty u/s 271(1)(b) of the I.T. Act shall not be levied for all these assessment years. In absence of any compliance made by the assessee, penalty u/s 271(l)(b) was levied by AO on 06.12.2019 for A.Ys. 2011-12 to 2017-18. 4. Before the Ld. CIT(A), it was submitted that on 19.11.2018 the AR of the assessee appeared along with the letter stating there in that as the notice u/s 142(1) fixing the case for 25.10.2018 was not received by the assessee till 25.10.2018, compliance of the notice u/s 142(1) could not be made. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns of income were filed by the appellant for these years on different dates before 31.03.2018. * Proceedings u/s 143(2) were initiated on 08.08.2018. Subsequently notice u/s 142(1) was issued on 13.08.2018 containing 23 queries to be replied by 23.08.2018. Due to non compliance by the appellant the AO issued show cause notice of penalty u/s 271(l)(b) on 07.09.2018 for these assessment years and case was fixed on 14.09.2018. In response to it, only copy of ITR and bank statement were submitted on 10.09.2018 and no other details were filed. * Another notice u/s 142(1) along with detailed questionnaire containing 14 queries and explanation of seized material was issued on 05.10.2018 for filing the details on 25.10.2018 for all these assessment years. There was no compliance by the appellant on 25.10.2018. * A show cause notice dated 09.11.2018 for imposing penalty u/s 271(l)(b), for failure to furnish details u/s 142(1) dated 05.10.2018 was issued by the AO fixing the date of hearing on 19.11.2018. The appellant did not respond to the notice of the hearing on this date. * The AO had issued prosecution notice u/s 276D dated 19.11.2018 to the appellant. * The AO passed pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.12.2018, when the appellant first responded to the AO on 07.12.2018. There was no request for adjournment at any point of time in the whole proceedings citing plausible reasons for delay in submission of details. Although AO had not levied any penalty for non compliance of earlier 142(1) notice dated 30.8.2018, there was no compliance of even this earlier notice by the appellant till December 2018. The case was time barring on 31.12.2018 and first compliance to 142(1) notices, dated 30.8.2018 & 5/16.10.2018, was made on 7.12.2018. Thus there was deliberate attempt on the part of the appellant to delay the compliance of the details asked by AO, to prevent the AO from investigation of issues, by squeezing the time at the disposal of the AO. Thus this plea of the appellant is also rejected considering the overall behaviour of the appellant regarding compliance before the AO. 6.3.2 The argument of the appellant that the notice u/s 142(1) was dated 5.10.2018 whereas the penalty notice u/s 271(l)(b) states date of notice as 16.10.2018. These facts have been clarified in the above para 6.2. The notice was dated 5.10.2018, but the questionnaire referred in notice was later modified & m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation process during assessment proceedings to the AO. Even the penalty notices u/s 271(l)(b) on two occasions and prosecution notice issued by the AO could not elicit the compliance from the appellant. Although the AO had not levied any penalty for the show cause notice of penalty u/s 271(l)(b) issued by him on 07.09.2018, the AO had levied penalty for notice u/s 271(l)(b) issued by him on 05.10.2018 after observing the habitual non-compliant behaviour of the appellant. The appellant had waited till the levy of penalty u/s 271(l)(b) on 6.12.2018, to file first set of submissions after it on 07.12.2018. Thus till the passing of penalty order u/s 271(l)(b) by AO on 06.12.2018, there was no compliance on part of appellant of the notices u/s 142(1) issued by the AO on 5/16.10.2018. The penalty order had been passed after one & half months of due date of filing of submissions by the appellant. Even considering the possible delay in service of notice, the appellant had not bothered to file the requisite details for a long period of time without assigning any "reasonable cause" for such delay or any adjournment letter seeking more time from AO. The appellant had not brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the other hand relied on the order of the Ld. CIT(A). He submitted that Ld. CIT(A) has given elaborate reasons as to why the penalty levied by the AO in the instant case should be sustained. He accordingly submitted that the order of the Ld. CIT(A) should be upheld. 11. I have heard the rival arguments made by both the sides and perused the material available on record. I find that AO in the instant case levied penalty of Rs. 10,000/-each u/s 271(1)(b) of the Act for assessment year 2011-12 to 2016-17 on the ground that assessee did not respond to the notice dated 5th October 2016 fixing the hearing for 25th October, 2018. I find Ld. CIT(A) upheld the penalty levied by the AO, the reasons for which have already been reproduced in the preceding paragraphs. It is the submission of the Ld. Counsel for the assessee that the assessment was ultimately completed u/s 143(3) of the Act and, therefore, penalty should not be levied merely on technical reasons. Further, it is also his submission that under identical circumstances the coordinate bench of the Tribunal in the case of Smt. Neetu Nayyar vs ACIT and Smt. Meena Nayyar vs. ACIT (supra) has deleted the penalty levied by the AO and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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