2023 (8) TMI 1258 - AT - Income Tax

Tribunal quashes penalty order citing procedural errors

Shri Gajender Singh Jadon Versus Asst. CIT Ward-57 (5) New Delhi

The Tribunal allowed the appeal, quashing the penalty order under section 271(1)(b) of the Income Tax Act and the Commissioner of Income Tax (Appeals) ... Penalty u/s 271(1)(b) - Manner of service of notice - assessee has not complied with the notices issued by the A.O. u/s 148/142(1) - HELD THAT:- In the instance case, the first notice has been admittedly ‘not served’ and the notice was returned with remark ‘No such person is residing in this address’. A.O. considering the fact that the case of the assessee is going to be time barred by limitation and has to be completed before 31st January, 2014 opted for issuing notice u/s 142(1) of the Act by way of substitute service of Affixture on 14/01/2104 for compliance of the same on 24/01/2014 and on the very same day i.e. on 24/01/2014 the A.O. passed the assessment order u/s 144/147. Apart from the same, there is no mentioning of reasons by the A.O. in the assessment order as to why the Notice has to be served through affixture and the A.O. has not mentioned anything regarding efforts of ‘due and reasonable diligence to serve the notice’ on the assessee as required under rule 17 of order V of the CPC, thus the Service of Notice by way of affixture on the Assessee cannot be construed as sufficient Service of Notice. Therefore, in our considered opinion, the A.O. has committed an error in initiating penalty proceedings - Grounds of Appeal of the assessee are allowed. Issues involved:The issues involved in the judgment are the erroneous order of the Commissioner of Income Tax (Appeals), jurisdiction of the Income Tax Officer, levy of penalty under section 271(1)(b) of the Income Tax Act, delay in filing the appeal, and the proper service of notices to the assessee.Erroneous Order of Commissioner of Income Tax (Appeals):The appeal was filed against the order of the Learned Commissioner of Income Tax (Appeals)-19, New Delhi, dated 31/01/2019 for Assessment Year 2006-07. The grounds of appeal challenged the correctness of the order under section 250 of the Act, claiming it to be erroneous and bad in law. The appellant also contended that the order passed by the Income Tax Officer under section 144/147 of the Act was without jurisdiction and void ab initio.Jurisdiction of Income Tax Officer and Penalty Proceedings:The assessment order under section 144/147 of the Income Tax Act was passed, assessing the income of the assessee at Rs. 14,62,150, which was cash deposited to the assessee's bank account. Penalty proceedings under section 271(1)(b) were initiated due to non-compliance with statutory notices issued under section 142(1) of the Act. The order of penalty imposing Rs. 10,000 was challenged in the appeal. The appellant argued that proper procedures were not followed in serving notices, leading to the penalty proceedings being erroneous and against natural justice.Delay in Filing Appeal and Proper Service of Notices:There was a delay of 44 days in filing the appeal, which was condoned after the assessee provided reasons for the delay. The judgment highlighted the importance of proper service of notices to the assessee, emphasizing the need for compliance with the provisions of the Code of Civil Procedure 1908 for service of summons. The judgment analyzed the service of notices by way of affixture and the requirements under Rule 17 of Order V of the CPC. It was observed that the service of notice by affixture was not proper as it did not meet the criteria of due and reasonable diligence required for such service.Conclusion:After considering the arguments of both parties and examining the material on record, the Tribunal found merit in the grounds of appeal raised by the assessee. The order of penalty under section 271(1)(b) of the Act and the order of the Commissioner of Income Tax (Appeals) were quashed. The appeal of the assessee was allowed, emphasizing the importance of proper service of notices and adherence to procedural requirements in penalty proceedings.