HARNEET SINGH, R/O GHUDUWALA JAND SAHIB V. INCOME TAX DEPARTMENT, N.F.A.C , DELHI

ITA 360/ASR/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0242 (ITAT-AMRITSAR)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-06-2024
• Assessment Year: misc
• Appeal Filed On: 10-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DIGVIJAI KUMAR CHAUDHARY
• Keywords: Opportunity of being heard
• Section: 142(1); 250; 13; 272A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DAS GUPTA, JUDICIAL MEMBER I.T.A. No.360/Asr/2023 Assessment Year: 2017-18 Harneet Singh, R/o Ghuduwala Jand Sahib, Faridkot. [PAN:GKBPS3523P] (Appellant) Vs. ITO, Faridkot. (Respondent) Appellant by Sh. K. R. Jain, Adv. Respondent by Sh. Digvijai Kumar Chaudhary, Sr. DR Date of Hearing 06.06.2024 Date of Pronouncement 12.08.2024 ORDER Per: Udayan Das Gupta, JM This appeal is preferred by the assessee against the order of the Ld. CIT (A) NFAC, order dated 31/10/2023, passed u/s 250 of the Act 61, confirming the penalty imposed by the AO u/s 272A(1)(d) of the Act 1961, dated 03.08.2021. 2. The grounds of appeal of the assessee are as under: “1. That the order passed by the Learned Commissioner of Income Tax (Appeals) imposing penalty of Rs. 20000/- u/s 272A(l)(d) is wrong, illegal and without justification. I.T.A. No.360/Asr/2023 Assessment Year: 2017-18 2 2. That no notice u/s 142(1) have been served and as such proceedings initiated, assessment completed and penalty imposed is wrong, illegal and without justification. 3. That CIT (Appeals)mentioned that the service has been electronically effected which is against the facts of the case. 4. That the CIT(Appeals )has not provided reasonable opportunity of being heard . 5. The appellant is an agriculturist who not well aware of the provisions of the income tax act and electronic media (service of notice by mail ). 6. That appellant is an agriculturist and there is no justification for making the addition and imposing penalty and his income is below taxable limit.” 3. Facts of the case are that in case of assessment proceedings notices were issued by the AO u/s 142(1) of the Act for compliance on 01.08.2019 and 23.09.2019, but there has been no compliance on the part of the assessee thereafter the assessment has been completed ex parte. 3.1 Penalty has been initiated u/s 272A(1)(d) of the Act 1961 for non- compliance of notices u/s 142(1) on the above two mentioned dates of hearing. 3.2 There was no compliance on the part of the assessee and no reply has been filed against the notice u/s 272A(1)(d). As such, the ld. AO imposed penalty of Rs.20,000/- for non-compliance of statutory notice u/s 142(1) on two dates i.e. 01.08.2019 and 23.09.2019 @ Rs.10,000/- for each default. I.T.A. No.360/Asr/2023 Assessment Year: 2017-18 3 4. Before the ld. CIT(A) written submissions has been filed where the assessee pointed out that no notice u/s 142(1) has been actually served on the assessee in course of assessment proceedings. He has filed copies of order sheet downloaded from the portal where the issue of notice u/s 142(1) dated 01.08.2019 and 23.09.2019 are recorded but dates of actual service of such notices has been left blank. 5. The ld. CIT(A) rejected the contention of the assessee on the ground that the AO has clearly mentioned service of notice through E-mail which is valid service, and such the appeal has been dismissed. 6. Now, the assessee is in appeal before the tribunal on the ground that no notice u/s 142(1) have ever been served and as such, the entire proceedings are illegal and without justification. He further submits that the E-mail mentioned by the AO neither pertains to the appellant nor has he ever used such E-mail. The appellant is illiterate agriculturist and not conversent with such system and the notice if any sent on E-mail cannot be assumed that the service has been effected. He further states that there is no evidence on record regarding the service of notice on the assessee and it is well settled that in absence of any such notice issued which is not in accordance with law and notice not served on the proper person then assessment would be illegal. On this issue, he relied upon the judgment of the Hon’ble Karnataka High Court in the case of Doreswamaiah Sureshbabu Vs. NFAC, [2023] 155 taxmann.com 13 (Karnataka). I.T.A. No.360/Asr/2023 Assessment Year: 2017-18 4 7. The ld. DR relies on the order of the ld. CIT(A) and submits that the penalty has been rightly imposed and prays for sustaining the order of the appellate authorities. 8. We have heard the rival submissions and considered the documents available on record. We find from the copy of the order sheet, submitted before us which is downloaded from the Income Tax Departmental portal, that notice u/s 142(1) were issued on 01.08.2019 and second notice on 23.09.2019 has been issued but the service date of such notice in the service column has been left blank, so, it is not clear whether the notice has at all been served on the assessee or not. 9. Secondly, we also find that as per provision of section 271(1)(b) in case of violation to notice u/s 142(1) penalty is attracted for each such failure. The relevant provision of section 272A the conclusion and instance reads as: “He shall pay, by way of penalty, [A sum of ten thousand rupees] for each such default or failure.” 10. We are of the opinion that since, it is the case of imposition of penalty each failure has to be viewed and considered separately. In such cases, there should be separate penalty notices for each separate failure and in this case, there should have been two separate penalty proceedings for two separate defaults. But we find from the penalty order passed u/s 272A(1)(d) dated 03.08.2021 that a consolidated order of penalty has been passed in a consolidated manner for two separate defaults u/s I.T.A. No.360/Asr/2023 Assessment Year: 2017-18 5 142(1) which cannot be termed as legally valid, as per provision of section 271(1)(b)(ii) of the Act 61 r.w.s. 272A(1)(d) of the Act 61. 10.1 Moreover, in absence of proof of actual service of notices u/s 142(1) available in the portal submitted by the assessee, willful and intentional default, on the part of the assessee cannot be proved. 10.2 As such, we are of the opinion that penalty of Rs.20,000/- imposed for two separate defaults u/s 142(1) vide a consolidated penalty order is not legally valid, and is deleted. 11. In the result, the appeal of the assessee bearing ITA No. 360/Asr/2023 is allowed. Order pronounced in the open court on 12.08.2024 Sd/- Sd/- (Dr. M. L. Meena) (UDAYAN DAS GUPTA) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order I.T.A. No.360/Asr/2023 Assessment Year: 2017-18 6