Case Law Details
Kusum Mittal Vs ITO (ITAT Jaipur)
From the records, we noticed that the penalty has been imposed by the AO for non-compliance of notice under section 142(1) of the IT Act dated 24.05.2019 issued during the assessment proceedings under section 147/243(3) of the Act. It is categorically mentioned in the written submission filed by the assessee that the assessee had never received the notice till the completion of assessment proceedings and, therefore, ex party assessment as well as penalty for non-compliance of notice under section 271(1)(b) of the Act is not sustainable. In order to prove its contention, the assessee has also filed an affidavit wherein the same facts have been narrated. Apart from this, assessee has also relied upon the information received from the Income Tax Department under Right to Information Act wherein the assessee had sought specific information with regard to service and delivery of notice under section 142(1) dated 24.05.2019. In this regard the information supplied by the department categorically mentioned that the department is not having any proof with regard to service and delivery of notice under section 142(1) of the Act. Since the assessee has filed an Affidavit coupled with report from the Income Tax Department in order to prove that service of notice under section 142(1) of the Act was never effected upon the assessee, therefore, keeping in view the factual position of the present case, we are of the view that proper service of notice is vital for imposition of penalty under section 271(1)(b) of the Act. In this regard, we draw reliance in case of CIT vs. Har Parshad (1990) 49 Taxman 168 (P&H). Moreover, the Affidavit filed by the assessee and the report of the IT Department which has been placed on record and relied upon by the assessee, has not been rebutted or controverted by the ld. D/R. Therefore, considering the un-rebutted documents relied upon by the assessee and also keeping in view the principles laid down by the Hon’ble High Court in case of CIT vs. Har Parshad (supra), we are of the view that since there is no proof of delivery and service of notice under section 142(1), therefore, in our view no penalty is attracted under section 271(1)(b) of the Act. The penalty is deleted.
FULL TEXT OF THE ORDER OF ITAT JAIPUR
This appeal by the assessee is directed against the order dated 24.05.2022 of ld. CIT (A), National Faceless Appeal Centre (NFAC), Delhi passed under section 250 of the IT Act for the assessment year 2012-13. The only issue involved in the present appeal relates to penalty of Rs. 10,000/- imposed by the AO under section 271(1)(b) of the Income Tax Act, 1961.
2. None appeared on behalf of the assessee. However, the ld. A/R filed the written submissions and requested to decide the appeal on the basis of written submissions. In the written submissions, the ld. A/R submitted as under :-
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