TMI Blog2022 (9) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... ged non-compliance. Therefore, we note that when the AO has framed the assessment order u/s 143(3) r.w.s. 153A of the Act and assessment order has not been passed u/s 144 of the Act, therefore the penalty u/s 271(1)(b) of the Act, for non-compliance should not be levied. CIT(A) sustained penalty partly for second default - As penalty sustained by the Ld. CIT(A) is not in accordance with the provision of Section 271(1)(b) and clause (ii) of that Section. We note that Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim 'Expressio unius est exclusion alteris', meaning there by that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. See NAZIR AHMAD VERSUS KING EMPEROR (NO. 2) [ 1936 (6) TMI 11 - PRIVY COUNCIL] ,RAM PHAL KUNDU VERSUS KAMAL SHARMA [ 2004 (1) TMI 675 - SUPREME COURT] and INDIAN BANKS' ASSOCIATION AND OT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 142(1) of the Act dated 02.12.2020: The date fixed for compliance of this notice was on 14.12.2020. The Assessee took adjournment on 14.12.2020 and asked the assessing officer for any date, as may be convenient to him. (ii) Assessing officer issued second notice under section 142(1) of the Act dated 16.12.2020: The date fixed for compliance of this notice was on 28.12.2020. Again assessee took adjournment on 28.12.2020 and asked assessing officer for any date as may be convenient. After this date, the compliance date was fixed on 01.01.2021, however, assessee took adjournment. 5. After that assessee has filed before the assessing officer, the relevant documents and evidences. The assessing officer, in his assessment order has mentioned that assessee has submitted required documents and details for making the assessment. The relevant para of the assessment order dated 31.05.2021, framed under section 143(3) read with section 153A of the Act, is reproduced below: 3.During the year under consideration, the assessee has shown to have received income from profit and gains from business or profession and is also a partner in diamond manufacture-exporter firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t order was ultimately passed u/s 143(3) and not u/s 144 of the Act and hence, penalty u/s 271(1)(b) of the Act is not leviable. At the same time, AO also is right in saying that inspite of giving 2 opportunities the Appellant failed to comply with the requirements given in the notices issued u/s 142(1) of the Act. 5.3 As far as the first notice u/s 142(1) is concerned, the appellant has filed for adjournment in time and AO is bound to give at lest one adjournment to the appellant. Hence, there is no default as such of notice dated 02.12.2020 which was to be complied by 14.12.2020 but the appellant filed the adjournment letter on 14.12.2020. Therefore, penalty u/s 271(1)(b) of the Act of Rs.10,000/- levied for first default is deleted. 5.4. The second notice was issued on 16.12.2020 asking the appellant to comply by 28.12.2020. The compliance date was extended initially to 01.01.2021 and subsequently to 11.01.2021 but inspite of it, the appellant did not comply with the notice. Hence, in my opinion, the AO was reasonable in giving sufficient time to the appellant but inspite of that appellant did not comply with the notice. Considering these facts and the fact that ul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessing officer in the assessment order itself, and the assessment order was passed u/s 143(3) r.w.s. 153A of the Act. 12. We find force in the arguments of ld Counsel, and noticed that Assessing Officer while framing the assessment order u/s 143(3) r.w.s. 153A of the Act, has himself mentioned in the assessment order that assessee submitted details and documents vide para no.3 of the order, which is reproduced below: 3.During the year under consideration, the assessee has shown to have received income from profit and gains from business or profession and is also a partner in diamond manufacture-exporter firm, M/s Om Anand Exports. The assessee has time to time furnished online submissions through the ld.Authorised Representative, Chartered Accountants, M/s Jagasheth Co. 13. This shows that assessment order, u/s 143(3) r.w.s. 153A of the Act, was framed by assessing officer after getting the required documents and details. Therefore, we note that when the assessee has submitted the required details and documents during the scrutiny assessment proceeding and based on these details and documents, the Assessing Officer has framed the assessment on merit. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the provision of Section 271(1)(b) and clause (ii) of that Section. We note that Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim 'Expressio unius est exclusion alteris', meaning there by that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. (Nazir Ahmed v. King Emperor AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma [2004] 2 SCC 759 and Indian Bank's Association v. Devkala Consultancy Service AIR 2004 SC 2615). Similar view has been expressed in the Orissa Rural Housing Development Corpn. Ltd, 343 ITR 316 (Orissa). Hence, ld CIT(A) has erred in sustaining the part penalty of Rs.5000/-, u/s 271(1)(b) of the Act, therefore order passed by the ld CIT(A) is not in accordance with the provisions of law. 16. Based on above facts and circumstances, we are not inclined to accept the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X
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