TaxTMI 
TaxTMI 
2020 (12) TMI 100
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.... the Act was conducted in the case of Surya Vinayak Group on 03.03.2011. At the same time, the search was also conducted at the residential premises of the assessee at Block AC-1/152C, Shalimar Bagh, Delhi. Also, a survey u/s. 133A of the Act was conducted at the business premises of M/s. HR Perfumery at 315, Industrial Area, Phase-II, Panchkula, Haryana, which is a proprietorship concern of the assessee. Subsequently, notice u/s. 153A of the Act was issued on 08.02.2012 and notices u/s. 142(1) of the Act were issued by the AO on various dates. There was no response from the assessee. As a result, the AO finalized the assessment u/s. 153A r.w.s. 144 of the Act to the best of his judgment. 6. During the course of assessment proceedings, the AO issued notice u/s. 142(1) on various dates i.e. 28.09.2012, 21.11.2012, 24.12.2012, 04.01.2013 & 11.02.2013. There was no response from the assessee and therefore, the AO initiated penalty proceedings u/s. 271(1)(b). The AO issued a penalty notice u/s. 271(1)(b) for failure to comply with the notices issues u/s. 142(1). In response, the assessee requested the AO to stay the penalty proceedings till the finalization of the appeal filed by th....
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....f Section 142 or Sub-Section (2) of Section 143, he may direct that such person shall pay by way of penalty a sum of Rs. 10,000 for each such failure." 14. On going through the provisions of Section 271(1)(b) and the conduct of the assessee with regard to the compliance to the notices, we find that the AO has rightly levied the penalty. 15. We have gone through the provisions of Section 273B which reads as under: "[Penalty not to be imposed in certain cases. 273B. Notwithstanding anything contained in the provisions of [clause (b) of sub-section (1) of] [section 271, section 271A, [section 271AA,] section 271B [, section 271BA], [section 271BB,] section 271C, [section 271CA,] section 271D, section 271E, [section 271F, [section 271FA,] [section 271FAB,] [section 271FB,] [section 271G,]] [section 271GA,] [section 271GB,] [section 271H,] [section 271-I,] [section 271J,] clause (c) or clause (d) of sub-section (1) or sub-section (2) of section 272A, sub-section (1) of section 272AA] or [section 272B or] [sub-section (1) [or sub-section (1A)] of section 272BB or] [sub-section (1) of section 272BBB or] clause (b) of sub-section (1) or clause (b) or clause (c) of s....
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....horities during the proceedings u/s. 133A on 14.10.2011. He also argued that since the Hard Disk of the computer has been crashed they could not reconcile the books of accounts. 22. The ld. DR relied on the orders of the authorities below. 23. Heard the arguments of both the parties and perused the material available on record. 24. The provisions of Section 271A are as under: "[Failure to keep, maintain or retain books of account, documents, etc. 271A. Without prejudice to the provisions of [section 270A or] section 271, if any person fails to keep and maintain any such books of account and other documents as required by section 44AA or the rules made thereunder, in respect of any previous year or to retain such books of account and other documents for the period specified in the said rules, the [Assessing] Officer or the [Commissioner (Appeals)] may direct that such person shall pay, by way of penalty, [a sum of twenty-five thousand rupees]. 25. We have gone through the provisions of Section 44AA, Section 271A and Section 273B. We have gone through the above provisions, so as to look into whether there was any reasonable cause for the failure to compl....
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.... also been taken by the assessee as would appear from the order of the Tribunal." * CIT Vs. Bisauli Tractors 299 ITR 219 (All.) after hearing the counsel for the revenue in an ex-parte order held, "that separate penalty has been provide for non-maintenance of accounts, i.e., under section 271A of the Act and for no getting the accounts audited and not furnishing the audit report i.e., under section 271B of the Act. In the present case, the Assessing Officer did not impose penalty under section 271A of the Act and instead proceeded to impose penalty under section 271B of the Act. If a person has not maintained the accounts book or any accounts the question of its audit does not arise. In such an event the imposition of penalty under the provision contained in section 271A of the Act for the alleged non-compliance." 9. On the other hand, the ld. DR vehemently argued that the penalty u/s. 271A and 271B are mutually exclusive and operate under different domains. She argued that it is not correct to hold that once penalty u/s. 271A has already been levied, the penalty under Section 271B cannot stand. It was argued that it is a case of assessee being in the bus....
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....s, at this juncture, we refrain ourselves from trespassing the domain of legislature as to the difference of the quantum of penalty leviable u/s. 271A and 271B." 28. Following the ratio of the above order and the since the facts of the case are same, we hereby delete the penalty levied u/s. 271B. 29. ITA Nos. 6870 & 6871/Del/2017 pertain to levy of penalty u/s. 271F. 30. The brief facts of the case are that a search u/s. 132 of the Act was conducted in the case of Surya Vinayak Group on 03.03.2011. At the same time, the search was also conducted at the residential premises of the assessee at Block AC-1/152C, Shalimar Bagh, Delhi. Also, a survey u/s. 133A of the Act was conducted at the business premises of M/s. HR Perfumery at 315, Industrial Area, Phase-II, Panchkula, Haryana, which is a proprietorship concern of the assessee. Subsequently, notice u/s. 153A of the Act was issued on 08.02.2012 and notices u/s. 142(1) of the Act were issued by the AO on various dates. There was no response from the assessee. As a result, the AO finalized the assessment u/s. 153A r.w.s. 144 of the Act to the best of his judgment. 31. The Assessing Officer initiated and levied penalty u/s.....
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.... the said failure.]" 37. We have gone through the above provisions, so as to look into whether there was any reasonable cause for the failure to comply to the notices. We find that the notices have been duly sent to the address of the assessee mentioned in the Panchanama drawn on the date of search and the ld. AR's contention that notices have not been sent to Panchkula cannot be accepted as the Panchkula address do not pertain to the residential address to the assessee. The notices have been rightly sent to the correct address and the assessee could not establish failure to comply to the notices with any reasonable cause. Hence, we decline to interfere with the order of the ld. CIT (A) and hold that the penalty has been rightly imposed by the Assessing Officer. ITA Nos. 6872 to 6874/Del/2017 38. These three appeals involve, a. Condonation of delay b. Admission of additional evidences c. Adjudication on merits a. Condonation of delay: 39. The appeal for the Assessment Years 2010-11 and 2011-12 has been delayed by 70 days whereas the appeal for the Assessment Year 2012-13 has been delayed by 139 days. 40. The ld. AR submitted that del....
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....ication is filed by one of the parties to the appeal and it need not to be a suo moto action of the Tribunal. The aforesaid rule is made enabling the Tribunal to admit the additional evidence in its discretion if the Tribunal holds the view that such additional evidence would be necessary to do substantial justice in the matter. It is well-settled that the procedure is handmade of justice and justice should not be allowed to be choked only because of some inadvertent error or omission on the part of one of the parties to lead evidence at the appropriate stage. Once it is found that the party intending to lead evidence before the Tribunal for the first time was prevented by sufficient cause to lead such an evidence and that this evidence would have material bearing on the issue which needs to be decided by the Tribunal and ends of justice demand admission of such an evidence, the Tribunal can pass an order to that effect. 14. The next question which arises for consideration is as to whether the exercise of discretion in the instant case permitting the additional evidence by the Tribunal, is apposite? It is undisputed that rule 29 of the Rules is akin to Order 41 Rule 27(1) ....
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....e addresses mentioned in the Panchanama on various dates viz. 28.09.2012, 21.11.2012, 24.12.2012, 04.01.2013 and 11.02.2013. Further, summons were also issued u/s. 131 and served by the Inspector on 04.02.2013 and 27.02.2013. Hence, it cannot be said that the ex-parte assessment have been completed without affording adequate opportunity to the assessee. It was argued that the assessee inspite of receipt of all the notices and the summons u/s. 131 has never complied to the notices and summons. It was argued by the ld. DR that the premises of the survey at Panchkula was not the residential address of the assessee and the assessee stayed at the place where summons have been duly served i.e. the residential address at Delhi as mentioned in the Panchanama. The ld. DR reiterated that the summons u/s. 131 have also been duly served at the residential address of the assessee. 50. With regard to the additional evidences, the ld. DR argued that they are not in nature of any additional evidences that only the arguments of the assessee. He argued that the Panchanama, the bank statement and the proceedings PMLA Court/ACCM Special Act are not any additional evidences which has any material im....