TaxTMI 
TaxTMI 
2013 (9) TMI 127
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....o not responded to the notice issued u/s 143(2)/142(1) in spite of notice being served directly and repeatedly upon the assessee. The details of such notices issued and conclusion of AO has been summarized by ld. CIT(A) in the impugned order as under : S.No. Notice under which section and dated Date of hearing Remarks 1 143(2) dated 25.8.2009 issued and duly served upon the assessee 25.9.2009 Requisite details not filed. Nobody attended and adjournment letter filed by M/s Malpani and Associates without enclosing any letter of authority 2 142(1) dated 12.10.2009 along with questionnaire issued and duly served upon the appellant 22.10.2009 -do- 3 Notice u/s 274 r.w..271(b) dated 25.3.2010 issued and duly served upon the appellant. 05.04.2010 -do- That AO stated that said M/s Malpani and Associates never produced any letter of authority executed in their favour by assessee. Therefore, the said firm had no authority and no business to file reply. The AO did not consider the reply filed by unauthorized representative. AO has further stated that the said firm was wrongly saying that "fresh notices will be issued in the matter". AO has stated that the assessee have been d....
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....reasonable cause has been shown as to why compliance was not made by the appellant. Ld. Counsel has not been able to demonstrate as to why the appellant failed to furnish the compliance repeatedly and failed to comply with the terms of the notices issued u/s.142(1)/143(2) of the Act. Even the letter of authority was not filed before the Assessing Officer. No letter of authority nor power of attorney in favour of M/s.Malpani & Associates, duly executed by the appellant, was filed, not even before the undersigned. The reasonable cause has to be shown by the appellant and it is not for the Ld. Assessing Officer to establish contumacious conduct on the part of the appellant or deliberate defiance of law. No evidence nor material was placed before me to show as to why notices u/s.142(1)/143(2) were repeatedly avoided and not complied with. Even the circumstances under which the relevant details were not furnished were not properly explained. At least, the appellant could have attended personally or through Authorized Representative and could have furnished the details as called for u/s.142(1)/143(2) of the Act. Ld. Assessing Officer has given a finding of fact that no letter of authorit....
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....f revenue. Honorable Apex Court ruled that the penalty under that provision is a civil liability. Willful concealment is not an essential ingredient for attracting civil liability as is the case in the matter of prosecution under section 276C of the IT Act. In Union Budget of 1996-97, section 11AC of the Central Excise Act, 1944 was introduced. It has made the position clear that there is no scope for any discretion. The Honorable Supreme Court had referred to a catena of decisions which held that mens rea is not an essential element to impose penalty for breach of civil applications. Some of these decisions of Honorable Apex court are referred to as under : (a) Director of Enforcement V/s MCTM Corp (P) Ltd : (SCC) pp.478 and 480-81: It was held that breach of civil application which attract penalty u/s 23(1)(a) would immediately attract the levy of penalty u/s 23, irrespective of the fact that whether the contravention was made by the defaulter with any guilty intention or not. (b) J.K.Industries Ltd V/s Chief Inspector of Factories and Boilers (SCC p.692, para 42) It was held that the offences under the Act was not a part of general penal law but arise from the breach of a d....
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.... the appellant is of recurring nature in as much as it is repetitive in all the assessment years reopened u/s.153A/153C of the Act. Such repetitive failure and lackadaisical approach of the appellant cannot be held to be reasonable cause for failure to comply with the requirement of law. Hon'ble ITAT in the following cases have held that non compliance with notices u/s 143(2) and 142(1) merited the levy of penalty u/s 271(1)( b) of the Act (i) Shere Punjab Silk Store Vs. ITO (1991) 39 - ITD (Del) 469. (ii) UP. State Handloom Corporation Ltd. Vs. DCIT (1992) 42 - ITD - 208 (All) 2.3.4. Having regard to the facts and circumstances of the case and in the light of aforesaid decisions, I am satisfied that this was a fit case for levy of penalty U/s. 271(1)(b) and no interference in the orders of the Ld. Assessing Officer passed U/s. 271(1)(b) is warranted". Hence, the assessee has filed these appeals before the Tribunal. 6. At the time of hearing, ld. AR submitted that assessee's Representative appeared before the AO and filed an adjournment letter. He further submitted that the assessment order ultimately was passed u/s 143(3) r.w.s.153A of the Act and referred pages 35 to 61 of t....
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....liance of statutory notices, it is not necessary that there should be an element of mens rea on the part of assessee. He submitted that the failure to comply with the statutory notices, for no reasonable explanation is deliberate defiance of law on the part of assessee and hence, the penalty has rightly been confirmed by ld. CIT(A) on the facts of the case. Ld. DR submitted that the order of the Tribunal dated 25.4.2013 has been passed ex- parte merely on the ground that the adjournment application was filed on behalf of the assessee but the Tribunal did not consider the fact that adjournment application was filed by the person who was not Authorized Representative of assessee as there was no authority letter in favour of the person who filed the adjournment application. Hence, the said adjournment application is as good as non filing of any application by the assessee. He submitted that the order of ld. CIT(A) may be confirmed which is self explanatory. 8. We have considered the submissions of ld. Representatives of parties and the orders of authorities below. We have also considered the order of the Tribunal dated 25.4.2013 (supra). There is no dispute to the fact that the notic....