Anil Kumar Avasthi, Shahjahanpur V. ITO 3(2), Hardoi, Hardoi

ITA 47/LKW/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 2172 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 26-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Set aside
• Section: 144; 143(3); 13

Judgement Text

I.T.A. No.47/Lkw/2021 Assessment Year:2011-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘B’, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA No.47/Lkw/2021 Assessment Year:2011-2012 Shri Anil Kumar Awasthi, C/o CA Sanjay Saxena, 12, Pratap Enclave, Bisrat Road, Shahjahanpur. PAN:AXJPA4796M Vs. Income Tax Officer-3(2), Hardoi. (Appellant) (Respondent) O R D E R PER T. S. KAPOOR, A.M. This is an appeal filed by the assessee against the order of learned CIT(A), dated 12/03/2021 pertaining to assessment year 2011-12. 2. At the outset, Learned A. R. invited our attention to the fact that the appeal filed by the assessee is delayed by 13 days and our attention was also invited to copy of application dated 24/05/2021 for condonation of delay wherein the reason for delay in filing the appeal has been mentioned. Learned A. R. explained that the appeal could not be filed within the time for the reason that the Government had declared a lockdown owing to spread of pandemic COVID-19 and the office of the Chartered Accountant was closed. It was submitted that the assessee was prevented by reasonable and sufficient cause in not filing the appeal within the prescribed Appellant by Shri Sanjay Saxena, C.A. Respondent by Shri Harish Gidwani, D.R. Date of hearing 26/07/2022 Date of pronouncement 28/07/2022 I.T.A. No.47/Lkw/2021 Assessment Year:2011-12 2 time therefore, the delay may be condoned and the appeal may be heard. Learned D. R. had no objection to the condonation of delay. Finding the reason plausible for delay in filing the appeal, the delay was condoned and both parties were heard. 3. During the course of hearing, Ld. counsel for the assessee has contended that during the course of assessment proceedings initially the assessee could not appear, but later on, assessee has appeared and filed reply to show cause notice, but Assessing Officer levied the penalty of Rs.10,000/- u/s 271(1)(b) of the Act. Ld. counsel for the assessee further contended that once the assessee has appeared before the Assessing Officer no penalty u/s 271(1)(b) of the Act should have been levied. In support of these contentions, he placed reliance upon the order of the Tribunal in the case of Akhil Bhartiya Prathmik Shikshak Vs. Asstt. Director of Income Tax reported in 115 TTJ 419 (Delhi) in which it has been held that the order was passed u/s 143(3) and not u/s 144 of the Act and the defaults committed earlier by the assessee should be ignored by the Assessing Officer, as there was good compliance in assessment proceedings. Therefore, in such circumstances there is no reason to come to the conclusion that the default was willful. 4. Ld. DR of the Revenue placed reliance upon the order of the CIT(A). 5. We have heard the rival submissions, carefully considered the same along with the orders of the tax authorities below. We find that the assessee has appeared before the Assessing Officer and filed a reply to show cause notice and later on the Assessing Officer has completed assessment u/s 143(3) of the Act. We have also carefully examined the order of the Tribunal in the case of Akhil Bhartiya Prathmik Shikshak (Supra), and we are of the view that whenever the assessee appeared before the Assessing Officer in subsequent proceeding and assessment has I.T.A. No.47/Lkw/2021 Assessment Year:2011-12 3 been completed u/s 143(3) of the Act, the default committed in earlier proceedings should be ignored and no penalty u/s 271(1)(b) of the Act should be levied. Since the assessee has appeared in subsequent proceeding and assessment order has been passed u/s 143(3) of the Act, no penalty u/s 271(1)(b) of the Act is leviable. Accordingly, we set aside the order of the CIT(A) and delete the penalty. 6. In the result, the appeal of the assessee is allowed. (Order pronounced in the open court on 28/07/2022) Sd/. Sd/. ( A. D. JAIN ) ( T. S. KAPOOR ) Vice President Accountant Member Dated:28/07/2022 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow Assistant Registrar