Case Law Details
Neeraj Kumar Vs ITO (ITAT Delhi)
From the penalty order, we observe that the Assessing Officer nowhere stated that the notices issued u/s 142(1) of the Act were served on the assessee. In the entire penalty order we observe that the notices said to have been issued by the AO but it is not the finding of the AO that anyone of such notices were served on the assessee. It is also the contention of the assessee that even notice u/s 148 said to have been issued by the AO was never served on the assessee and the appeal filed by the assessee is still pending before the Ld. CIT(A). We also observe that even for not responding to notice u/s 148 of the Act the AO levied penalty u/s 271(1)(b) of the Act even though the provisions of Section 271(1)(b) does not stipulate levying any penalty for not responding to notice u/s 148 of the Act. The assessee even though furnished affidavit explaining the circumstances under which the notices issued to him were not served the Ld.CIT(A) failed to appreciate the submissions and confirmed the penalty levied u/s 271(1)(b) even for the default for not responding to 148 notice which no penalty is also leviable u/s 271(1)(b) of the Act. We observe that there is a reasonable cause in not responding to the notice by the assessee as the Revenue nowhere proved that the notices issued u/s 142(1) were served on the assessee so as to attract the penalty u/s 271(1)(b) of the Act. Therefore, taking the totality of facts and circumstances into consideration, we direct the Assessing Officer to delete the penalty levied u/s 271(1)(b) of the Act.
FULL TEXT OF THE ORDER OF ITAT DELHI
These two appeals are filed by the assessee against different orders of the Ld. Commissioner of Income Tax (Appeals)-17, New Delhi dated 09.04.2019 for the assessment years 2010-11 and 2012-13 in sustaining the penalty levied u/s 271(1)(b) of the Act.
2. Ld. Counsel for the assessee submits that the assessee is an individual and no return of income was filed as his income was below the taxable limit. The case was re-opened on the basis of AIR information for trading in Multi commodity exchange in which he has suffered losses. Ld. Counsel submits that the assessee was staying with his family at WZ-481, Naraina Village, New Delhi on rent in the house owned by Late Sh. Ravinder Kumar from the year January 2003 to January 2011. The confirmation from the wife of the landlord is enclosed dated 22.04.2019. Ld. Counsel submits that due to heavy losses in the commodity market he shifted his family and residence to his home town at 275, Village-Satheri, Tehsil and Post Khathuli, Distt., Muzaffarnagar-251201 U.P. in January 2011 and since than he is staying there only. The copy of his Aadhar Card is enclosed. The assessment was reopened u/s 148 on 14.03.2014 and notices were sent to Naraina Address. No notice u/s 148 and 142(1) was received by the assessee as he had shifted from Delhi in the year 2011 to Khatuli and assessment was completed u/s 144 vide order dated 05.03.2015. No notice for the penalty proceedings u/s 271(1)(b) was also received. The AO imposed penalty u/s 271(1)(b) of Rs.70000/- being defaults made for non compliance of notices on seven occasion @ Rs.10000/- each vide order dated 17.09.2015. Ld. Counsel submits that the assessee came to know about the assessment and the demand on being contacted by TRO-17, in first week of October 2018, then he immediately contacted him and AO and obtained certified copies of all orders and filed the appeals on 25.10.2018. Ld. Counsel submits that before the Ld.CIT(A) besides the submissions an affidavit affirming all the facts on oath was also filed but the Ld.CIT(A) has not considered the same. The quantum appeals are pending with CIT(A) and penalty appeals u/s 271(1)(b) has been rejected for which the present appeals are filed. Ld. Counsel submits that the assessee applied for the change of address in the PAN data on 03.05.2019. The AO imposed penalty for 7 defaults which includes the default for non-compliance of notice u/s 148 also which is not covered in Section 271(1)(b). Therefore, the Ld. Counsel for the assessee submits that since the assessee has not received any notice u/s 148 or 142(1) of the Act there is no justification in levying the penalty by the Assessing Officer and confirming by the Ld.CIT(A).
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