TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 1322
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....well as grounds of appeal raised by assessee in the case of Sanjaybhai Arjunbhai Patel in ITA No.148/SRT/2022, for assessment year 2012-13, have been taken into consideration for deciding these appeals en masse. 3. The grounds of appeal raised by the assessee in "lead" case in ITA No.148/SRT/2022, for assessment year 2012-13, are as follows: "1.On the facts and in the circumstances of the case as well as law on the subject, the learned commissioner of the Income Tax (Appeals) has erred in confirming the action of the assessing officer in levying penalty of Rs.5,000/- u/s 271(1)(b) of the I.T. Act, 1961. 2. It is therefore prayed that the above penalty may please be deleted as learned members of the Tribunal may deem it proper." 4. The facts of the case which can be stated quite shortly are as follows: During the course of assessment proceedings, following notices were issued u/s 142(1) of the Act: (i) Assessing officer issued notice under section 142(1) of the Act dated 02.12.2020: The date fixed for compliance of this notice was on 14.12.2020. The Assessee took adjournment on 14.12.2020 and asked the assessing officer for any date, as may be convenient to him. (ii) Asse....
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....o time. Regarding the non-compliance of notice of hearing dated 02.12.2020 and 16.12.2020 requiring appellant to attend/furnish details on 14.12.2020 and 28.12.2020, the appellant duly filed letter for adjournment on 14.12.2020 and 28.12.2020 itself. The noncompliance was due to heavy workload of audit work and coupled with Covid-19 pandemic, the AR's office was working with proper safety measure. Hence, it should not be considered as default for non-compliance of legal notice and penalized for the same u/s 271(1)(b) of the Act. On perusal of the submission, it is noticed that complete details were filed by the appellant during assessment proceedings and subsequently, the assessment order has been finally passed u/s 143(3) r.w.s. 153A of the Act. This proves that necessary compliance has been made eventually before the assessment order was passed by the AO. 5.2 There is some merit in the submissions of the AR that order was ultimately passed u/s 143(3) and not u/s 144 of the Act and hence, penalty u/s 271(1)(b) of the Act is not leviable. At the same time, AO also is right in saying that inspite of giving 2 opportunities the Appellant failed to comply with the requirements given ....
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.... assessee took only adjournments therefore Assessing Officer was right in levying penalty under section 271(1)(b) of the Act. This way, Ld. Sr.DR for the Revenue reiterated the stand taken by the Assessing Officer which we have already noted in our earlier para and is not being repeated again for the sake of brevity. 11. We have heard both the parties and perused the materials available on record. We note that Ld. Counsel for the assessee, assailing the imposition of penalty, has pleaded before us that Assessing Officer had imposed penalty in an arbitrary manner. The ld Counsel pointed out that on two occasions, the assessee had taken adjournments. In order to make paper book/compilation of documents and evidences, the assessee took few adjournments and in fact, later on, the assessee has submitted the required details and documents before the assessing officer which is acknowledged by the assessing officer in the assessment order itself, and the assessment order was passed u/s 143(3) r.w.s. 153A of the Act. 12. We find force in the arguments of ld Counsel, and noticed that Assessing Officer while framing the assessment order u/s 143(3) r.w.s. 153A of the Act, has himself mention....
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.... was considered as good compliance and the defaults committed earlier were ignored by the AO. Therefore, in such circumstances, there could have been no reason to come to the conclusion that the default was willful " 6. As the facts of this case are identical, we hold that the imposition of penalty u/s 271(1)(b) of the Act was patently wrong, specially in view of the fact that the impugned assessment order has been passed u/s 143(3). While setting aside the impugned order, we direct the Assessing Officer to delete the penalty." 15. We also note that Ld. CIT(A) sustained penalty at Rs.5,000/- partly for second default. However, the quantum of penalty u/s 271(1)(b), for each default is Rs.10,000/-, which is mentioned in clause (ii) sub-Section-1 of Section 271(1)(b) of the Act. Therefore, we note that penalty sustained by the Ld. CIT(A) is not in accordance with the provision of Section 271(1)(b) and clause (ii) of that Section. We note that Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal ....