2022 (10) TMI 396

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....13 to 2018-19 respectively. 2. In all these appeals, certain facts are common, the assessee has raised common grounds of appeal, therefore, with the consent of parties, all the appeals were clubbed, heard together and are decided by this consolidate order to avoid the conflicting decision. In the appeals for A.Y. 2012-13 to 2016-17, the assessee has challenged the validity of penalty levied under Section 271(1)(b) of the Income Tax Act, 1961 (in short, the Act) and in appeals for A.Y. 2017-18 and 2018-19, the assessee has challenged the penalty levied under Section 272A(1)(d) of the Act. For appreciation of fact, the appeal in ITA No. 134/Srt/2022 for A.Y. 2012-13 is treated as 'lead' case, wherein, the assessee has raised follow....

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....1) dated 03.12.2020 was issued to the assessee for calling certain details. The Assessing Officer further noted that vide notice dated 03/12/2020, the date of compliance was fixed on 16/12/2020. The assessee sought adjournment and the date was fixed for compliance on 04/1/2021. On 04/01/2021, the case was further adjourned to 11/01/2021. The assessee defaulted in making compliance of notice dated 03/12/2020. The Assessing Officer issued notice under Section 274 r.w.s. 271(1)(b) of the Act dated 23/01/2021 asking the assessee as to why penalty be not levied for non-compliance of notice under Section 142 of the Act. The assessee filed its reply as recorded in para 4 of penalty order. In the reply, the assessee stated that in the said notice, ....

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....03/12/2020, the assessee filed adjournment application on 28/12/2020. The delay in filing such adjournment application was due to Covid-19 pandemic and every one was undertaking proper safety measures. The auditor of assessee was having work load of audit work due to Covid-19 pandemic. Such action should not be considered as non-compliance. The assessee cooperated in assessment and replied all the questions and attended hearing. It is not the case that the assessment was completed under Section 144 for non-compliance. Once the assessment is completed and no addition is made, non-compliance is deemed to have been waived. The assessee relied on various case laws. 6. The ld. CIT(A) was considering the submissions of assessee has held that m....

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....urvived. The assessee furnished complete details which was accepted and no variation in the returned income for all the assessment years was made by Assessing Officer. 8. The ld. AR for the assessee submits that in December, 2020 and January, 2021 it was the pandemic period of severe Covid-19 infection. The Hon'ble Supreme Court in suo moto writ petition No. 3 of 2020, vide order dated 23/09/2021, which was which was extended from time to time it was directed for extension of period of limitation for compliance of various statutory provisions or for taking any remedial action, copy of order is placed on record. The ld. AR submits that due to Nation-wide severe pandemic infection, the assessee as well as his representative was taking ....

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....e parties and have gone through the orders of lower authorities. We have also deliberated upon the various case laws relied by the ld. AR of the assessee including the decision of Hon'ble Supreme Court in Suo Moto Writ Petition No. 3/2020. We find that the Assessing Officer finalised the assessment order on 07/06/2021. While finalizing the assessment order, no variation in the returned income was made, thus accepted the return income. Moreover, the assessment was completed under Section 143(3) r.w.s. 153C of the Act. The Assessing Officer before levying penalty issued notice under Section 274 r.w.s. 271(1)(b) dated 23/01/2021. In response to said show cause notice, the assessee specifically submitted that there is Covid-19 pandemic and ....

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....ld that when the assessment was framed under Section 143(3), merely because the assessee could not make compliance for single hearing due to bonafide reason on the penalty under Section 271(1)(b) of the Act cannot be imposed on the assessee for such bonafide default due to reasons beyond his control. In view of aforesaid factual and legal position, we direct the Assessing Officer to delete the impugned penalty. In the result, ground of appeal raised by assessee is allowed. 13. In ITA No. 135 to 138/Srt/2022 for the A.Y. 2013-14 to 2016-17, the facts are identical. The Assessing Officer levied penalty with similar reasons. Considering our decision in ITA No. 134/Srt/2022 for the A.Y. 2012-13, the penalties in all the appeals are deleted. ....