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TMI Blog2021 (7) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... alty is bad in law and penalty deserved to be set aside. 3. That the Ld.CIT (Appeals) having failed to appreciate that the assessee had challenged the reopening of assessment and the assessees' requests made from time to time to provide the reasons recorded for reopening and sanction of appropriate authority having not been provided, the assessee was constrained to provide the details and ore the order levying penalty is bad in law. 4. That the Ld.CIT (Appeals) ought to have held that the addition made to the returned income having been deleted in appeal before the CIT (Appeals) and the assessee having complied with the notices through emails, no penalty is leviable. 5. That unnecessary harassment having been caused to the assessee by the irresponsible action of the Department, proper cost be levied on the Department. That the assessee craves leave to add, alter, amend, modify, vary or delete any ground of appeal before or at the time of hearing. 2. Briefly stated facts of the case are that in view of the cash deposits of Rs. 14,89,775/- observed in bank account, assessment proceedings were reopened by way of issue of notice dated 30/03/2017 under section 148 of the Act by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to explain the reasons for non-compliance. Therefore, I find that the Assessing Officer has correctly invoked penalty u/s 271(l)(b) of the Income Tax Act, 1961 in this case. As the assessee has attended one hearing in response to notice issued 07.11.2017, the penalty u/s 271(l)(b) is restricted to Rs. 70,000/-." 2.1 Aggrieved with the above finding of the Ld. CIT(A), the assessee is in appeal before the Income Tax Appellate Tribunal (in short 'the Tribunal') raising the grounds as reproduced above. 3. Before us, the parties appeared through Video Conferencing facility and filed documents electronically through email. 4. Before us, the Learned Counsel of the assessee submitted that the assessee objected the reassessment proceedings, however, said objection was not disposed off by the Assessing Officer before passing of the assessment order under section 144 of the Act. The Learned Counsel also mentioned that the Assessing Officer ignored the information provided by the assessee, wherein he explained the source of income and cash deposits. The Learned Counsel also submitted that on 20/11/2017, the assessee personally appeared before the Assessing Officer, however, his subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from assessee with a request for adjournment but did not file file any requisite details. Considering the request, assessee was asked to file the requisite document either through AR or through e-mail on or before 15.12.2017 . 8 Adjournment 13.12.17 15.12.17 On 15.12.2017, assessee sent an email but did not file any submission 6.1 We find from above table that the penalty in respect of default at serial No. 3 (three) for non-compliance of notice dated 07/11/2017, has already been deleted by the Learned CIT(A) as the assessee attended on that date and on his request case was adjourned to another date. We find that in respect of default listed at serial No. 5, the notice was issued on 24/11/2017 for hearing fixed on 29/11 2017. It is evident from the third column, that case was adjourned to 06/12/2017 and therefore, we do not find any reason for levying penalty, when the Assessing Officer himself adjourned the matter to another date. Against the default listed at serial No. 6 of the table, we find that the assessee sent an E-mail on 04/12/2017 for hearing dated 06/12/2017. The assessee was not communicated at refusal of adjournment and therefore the assessee did not attend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and purchases representing deposits and withdrawals in the bank account relates to the retail business and provisions of section 44AF is duly applicable. 6.1 It is seen from assessment order that AO has conceded about the original return filed by the appellant but the same was treated as invalid due to the fact that provision of section 44AF was not mentioned in earlier return. Further, in the return, filed in response to notice u/s 148 the appellant has declared the receipts u/s 44AF but the same was not accepted by the AO, in the absence of any details furnished by the assessee. 6.2 Here it is pertinent to note that at the time of reopening the then AO was not in the knowledge of original return. It is not clear whether any notice issued to treat the original return of income as defective or non-est. Further, the return submitted in response to notice u/s 148, the appellant has mentioned about his income falling within 44AF of the Act. Even if the original return is treated as invalid, nothing has been brought on record to substantiate that appellant is not in retail business. Nothing has been brought on record by the AO to say that assessee is not in the business of retail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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