Case Law Details

Case Name : Salasar Derivatives Pvt. Ltd. Vs ITO (ITAT Mumbai)
Appeal Number : ITA No. 1916/Mum/2021
Date of Judgement/Order : 14/06/2022
Related Assessment Year : 2016-17

Salasar Derivatives Pvt. Ltd. Vs ITO (ITAT Mumbai)

Whether ld. CIT(A) was justified in confirming the levy of penalty u/s.271(1)(b) of Income Tax Act?

We find that the assessee did not appear before the ld. AO on 29/05/2018 being the scheduled date of hearing. However, on 30/05/2018, the assessee had duly appeared and submitted the relevant papers physically before the ld. AO. However, the ld. AO proceeded to levy penalty u/s.271(1)(b) of the Act for non-compliance on the scheduled date of hearing and levied penalty of Rs.10,000/- thereon vide order u/s.271(1)(b) of the Act dated 13/05/2019. This penalty was upheld by the ld. CIT(A).

We find that assessee had explained that the authorised representative was in Jalgaon on 29/05/2018 in connection with an audit assignment and accordingly, was not able to attend to the hearing on 29/05/2018. However, we find that assessee through its authorised representative had ensured presence before the ld. AO on 30/05/2018, 15/09/2018, 03/10/2018, 09/10/2018 and 17/10/2018 by furnishing the requisite details called for from time to time. Ultimately, we find that the assessment was completed by the ld. AO u/s.143(3) of the Act only. When an assessment has been completed u/s.143(3) of the Act, it goes to prove that there was sufficient compliance by the assessee by furnishing the requisite details before the ld. AO and that the ld. AO had indeed condoned the absence of the assessee on earlier occasion.

Hence, we deem it fit that this is not a fit case for levy of penalty u/s.271(1)(c) of the Act.

FULL TEXT OF THE ORDER OF ITAT MUMBAI

This appeal in ITA No.1916/Mum/2021 for A.Y.2016-17 arises out of the order by the ld. Commissioner of Income Tax (Appeals) National Faceless Appeal Centre (NFAC) Delhi in Order No. ITBA/NFAC/S/250/2021-22/1036138655(1) dated 04/10/2021 (ld. CIT(A) in short) in the matter of imposition of penalty u/s.271(1)(b) of the Income Tax Act, 1961 (hereinafter referred to as Act).

2. The only issue to be decided in this appeal is as to whether the ld. CIT(A) was justified in confirming the levy of penalty u/s.271(1)(b) of the Act in the facts and circumstances of the instant case.

3. None appeared on behalf of the assessee. A written submission was filed on behalf of the assessee by the authorised representative which is placed on record. We have perused the said written submissions, heard the ld. DR and perused the materials available on record. We find that the assessee did not appear before the ld. AO on 29/05/2018 being the scheduled date of hearing. However, on 30/05/2018, the assessee had duly appeared and submitted the relevant papers physically before the ld. AO. However, the ld. AO proceeded to levy penalty u/s.271(1)(b) of the Act for non-compliance on the scheduled date of hearing and levied penalty of Rs.10,000/- thereon vide order u/s.271(1)(b) of the Act dated 13/05/2019. This penalty was upheld by the ld. CIT(A).

3.1.We find that assessee had explained that the authorised representative was in Jalgaon on 29/05/2018 in connection with an audit assignment and accordingly, was not able to attend to the hearing on 29/05/2018. However, we find that assessee through its authorised representative had ensured presence before the ld. AO on 30/05/2018, 15/09/2018, 03/10/2018, 09/10/2018 and 17/10/2018 by furnishing the requisite details called for from time to time. Ultimately, we find that the assessment was completed by the ld. AO u/s.143(3) of the Act only. When an assessment has been completed u/s.143(3) of the Act, it goes to prove that there was sufficient compliance by the assessee by furnishing the requisite details before the ld. AO and that the ld. AO had indeed condoned the absence of the assessee on earlier occasion. Similar view was also taken by the Co-ordinate Benches of various Tribunal as under:-

a. Ganesh B Pokhriyal vs ACIT in ITA No.5291/Mum/2018 dated 29/11/2019

b. Globus Infocom Ltd., vs. DCIT in ITA No.738/Del/2014 dated 29/06/2016

c. Akhil Bharatiya Prathmik Shamshak Sangh Bhawan Trust vs. ADIT reported in 115 TTJ 419(Del)

d. Pillala Vishnuvandana vs. ACIT reported in 88 com 803 (Visakhapatnam Trib.)

3.2. Hence, we deem it fit that this is not a fit case for levy of penalty u/s.271(1)(c) of the Act. We direct the ld. AO to delete the said penalty. Accordingly, the grounds raised by the assessee are allowed.

4. In the result, appeal of the assessee is allowed.

Order pronounced on 14/06/2022 by way of proper mentioning in the notice board.

Download Judgment/Order

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