TMI Blog2022 (10) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee. In response to said notice, the assessee sought adjournment on 28/12/2020. The adjournment was allowed to assessee and on the request of assessee, the hearing of the case was fixed on 04/01/2021. Once the AO himself allowed adjournment, the cause of action for non-compliance was waived on that moment itself. CIT(A) while confirming the action of AO proceeded one step further and held that the assessee committed two defaults. In our view, the observation of ld. CIT(A) is contrary to the record and with the contents of order of penalty u/ 271(1)(b) of the Act. The assessee has shown sufficient cause for non-compliance, moreover, such non-compliance was done by granting adjournment by the AO himself. Considering the decision in various case laws relied by assessee wherein it was held that when the assessment was framed u/s 143(3), merely because the assessee could not make compliance for single hearing due to bonafide reason on the penalty u/s 271(1)(b) of the Act cannot be imposed on the assessee for such bonafide default due to reasons beyond his control - we direct the AO to delete the impugned penalty. In the result, ground of appeal raised by assessee is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of Rs. 4,44,170/-. The assessment was completed on 07/06/2021 accepting the returned income vide assessment order dated 07/06/2021 under Section 143(3) r.w.s. 153C of the Act. 4. The Assessing Officer initiated and levied penalty under section 271(1)(b). The assessing officer while passing the penalty order under Section 271(1)(b) recorded that during the assessment proceedings, notice under Section 142(1) dated 03.12.2020 was issued to the assessee for calling certain details. The Assessing Officer further noted that vide notice dated 03/12/2020, the date of compliance was fixed on 16/12/2020. The assessee sought adjournment and the date was fixed for compliance on 04/1/2021. On 04/01/2021, the case was further adjourned to 11/01/2021. The assessee defaulted in making compliance of notice dated 03/12/2020. The Assessing Officer issued notice under Section 274 r.w.s. 271(1)(b) of the Act dated 23/01/2021 asking the assessee as to why penalty be not levied for non-compliance of notice under Section 142 of the Act. The assessee filed its reply as recorded in para 4 of penalty order. In the reply, the assessee stated that in the said notice, the assessee requested to provide re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 143(3) r.w.s. 153C of the Act, such act will not exonerate the assessee in defaulting to appear before the Assessing Officer on two occasions. The Assessing Officer has levied penalty only for one default. With the aforesaid observation, the ld. CIT(A) held that he is of the opinion that the said default was willful and deliberate and upheld he penalty of Rs. 10,000/- levied under Section 271(1)(b) of the Act. Further aggrieved, the assessee has fled the present appeal before this Tribunal. 7. We have heard the submissions of the learned authorised representative (ld. AR) of the assessee and the learned Senior Departmental Representative (ld. Sr. DR) of the Revenue and have also perused the orders of the lower authorities carefully. The ld. AR of the assessee submits that the assessee has made full compliance during the assessment for all the assessment years. The assessment was completed under Section 143(3) r.w.s. 153C of the Act in accepting the returned income in all the years. The Assessing Officer levied penalty for non-compliance of notice dated 03/12/2021, despite the fact that the Assessing Officer himself allowed the adjournment on the application of assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. We have also deliberated upon the various case laws relied by the ld. AR of the assessee including the decision of Hon'ble Supreme Court in Suo Moto Writ Petition No. 3/2020. We find that the Assessing Officer finalised the assessment order on 07/06/2021. While finalizing the assessment order, no variation in the returned income was made, thus accepted the return income. Moreover, the assessment was completed under Section 143(3) r.w.s. 153C of the Act. The Assessing Officer before levying penalty issued notice under Section 274 r.w.s. 271(1)(b) dated 23/01/2021. In response to said show cause notice, the assessee specifically submitted that there is Covid-19 pandemic and everybody is doing work with safety measures and that his Accountant were busy in audit work. The reply of assessee was not accepted. The Assessing Officer levied penalty for non-compliance of notice dated 03/12/2020. In our view, the assessee has shown sufficient cause within the meaning of Section 273B in response to reply of show cause notice, therefore, no penalty under Section 271(1)(b) of the Act was leviable and the assessee is liable to succeed on this ground alone. 11. We have further noted th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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