PRAKASH KANUGO, MUMBAI V. ACITCEN CIR 14, MUMBAI

ITA 532/MUM/2011

• Counselvise Citation: 53219914 RSA 2011
• Duration Of Justice: 2 year(s) 7 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 21-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 19-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Reasonable cause; Non compliance
• Section: 143(3); 142(1); 153A; 132

Judgement Text

I.T.A. NO.528 TO 530 AND 532 TO 534/MUM/2011 1 , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND RAJENDRA (AM) . . , , ./I.T.A. NO.528 TO 530 AND 532 TO 534/MUM/2011 ( / ASSESSMENT YEARS:2003-04 TO 2008-09) SHRI PRAKASH KANUGO, 101, 1 ST FLOOR,SHARTRUNJAY APT, 28, SINDHI LANE, N D ROAD, MUMBAI-400004. / VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-14, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ( & / APPELLANT) .. ( ' & / RESPONDENT) ./ ./PAN/GIR NO. : AFKPK2696F & / APPELLANT BY : SHRI AJAY R SING H ' & * /RESPONDENT : SHRI PR AKASH J HA * - / DATE OF HEARING : 21.8.2013 * - /DATE OF PRONOUNCEMENT : 28.8.2013 / O R D E R PER BENCH: ALL THESE APPEALS ARE FILED BY ASSESSEE AGAINST COM MON ORDER OF LD. CIT(A) DATED 11.11.2010 FOR ASSESSMENT YEARS 2003-04 TO 2008-09 VIDE WHICH LD. CIT(A) HAS CONFIRMED THE ORDER OF AO LEVYING PENALTY OF RS.1 0,000/- U/S 271(1)( B) OF THE INCOME TAX ACT, 1961 (THE ACT) FOR EACH OF THE ASSESSMENT YEAR UNDER CONSIDERATION. 2. SINCE FACTS AND THE ISSUE INVOLVED ARE SAME AND THESE APPEALS ARE ALSO ARISING OUT OF A CONSOLIDATED ORDER OF LD. CIT(A), WE HEARD THESE APPEALS TOGETHER AND DECIDE THE SAME BY THIS COMMON ORDER, FOR THE SAKE OF CONV ENIENCE. 3. RELEVANT FACTS ARE THAT THERE WAS A SEARCH AND S EIZURE ACTION U/S 132 OF THE ACT. AO ISSUED NOTICE U/S 153A WHICH WERE SERVED UPON TH E ASSESSEE. AO STATED THAT THE ASSESSEE COMMITTED DEFAULT U/S 271(1)( B) OF THE AC T FOR NOT ATTENDING THE ASSESSMENT PROCEEDINGS BEFORE HIM AND ALSO NOT RESPONDED TO T HE NOTICE ISSUED U/S 143(2)/142(1) IN SPITE OF NOTICE BEING SERVED DIRECTLY AND REPEA TEDLY UPON THE ASSESSEE. THE DETAILS OF I.T.A. NO.528 TO 530 AND 532 TO 534/MUM/2011 2 SUCH NOTICES ISSUED AND CONCLUSION OF AO HAS BEEN S UMMARIZED BY LD. CIT(A) IN THE IMPUGNED ORDER AS UNDER : S.N O. NOTICE UNDER WHICH SECTION AND DATED DATE OF HEARING REMARKS 1 143(2) DATED 25.8.2009 ISSUED AND DULY SERVED UPON THE ASSESSEE 25.9.2009 REQUISITE DETAILS NOT FILED. NOBODY ATTENDED AND ADJOURNMENT LETTER FILED BY M/S MALPANI AND ASSOCIATES WITHOUT ENCLOSING ANY LETTER OF AUTHORITY 2 142(1) DATED 12.10.2009 ALONG WITH QUESTIONNAIRE ISSUED AND DULY SERVED UPON THE APPELLANT 22.10.2009 - DO - 3 NOT ICE U/S 274 R.W..271(B) DATED 25.3.2010 ISSUED AND DULY SERVED UPON THE APPELLANT. 0 5. 0 4.2010 - DO - THAT AO STATED THAT SAID M/S MALPANI AND ASSOCIAT ES NEVER PRODUCED ANY LETTER OF AUTHORITY EXECUTED IN THEIR FAVOUR BY ASSESSEE. TH EREFORE, THE SAID FIRM HAD NO AUTHORITY AND NO BUSINESS TO FILE REPLY. THE AO D ID NOT CONSIDER THE REPLY FILED BY UNAUTHORIZED REPRESENTATIVE. AO HAS FURTHER STATE D THAT THE SAID FIRM WAS WRONGLY SAYING THAT FRESH NOTICES WILL BE ISSUED IN THE MA TTER. AO HAS STATED THAT THE ASSESSEE HAVE BEEN DEFAULTER OF NON COMPLIANCE WITH REFEREN CE TO VARIOUS STATUTORY NOTICES ISSUED AND ACCORDINGLY LEVIED PENALTY U/S 271(1)( B ) OF THE ACT AT A MINIMUM AMOUNT OF RS.10,000/- FOR EACH OF THE ASSESSMENT YEAR. BE ING AGGRIEVED, ASSESSEE FILED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. 4. LD. CIT(A) HAS STATED THAT BEFORE HIM SHRI VINAY DOSHI, ATTENDED ON 3.11.2010 WITHOUT ANY LETTER OF AUTHORITY. HOWEVER, HE MADE PROMISE TO FURNISH WRITTEN SUBMISSION AND LETTER OF AUTHORITY ON THE NEXT DATE OF HEARING I.E. ON 11.11.2010 BUT HE ATTENDED ON THE SAID DATE, AGAIN WITHOUT ANY LETTER OF AUTHORITY. THE LD. CIT(A) HAS STATED THAT BY THE END OF THE DAY HE FURNISHED LETT ER OF AUTHORITY ALONG WITH WRITTEN SUBMISSIONS DATED 11.11.2010. IN THE SAID WRITTEN SUBMISSIONS, IT WAS ARGUED THAT SPECIFIC ADJOURNMENT REQUEST LETTER WAS FILED ON T HE DATE OF HEARING AND LETTER OF AUTHORITY WAS SUBSEQUENTLY FILED. LD. CIT(A) HAS S TATED THAT IT WAS CONTENDED BEFORE HIM THAT PENALTY IN THE OPINION OF THE LD. AR COUL D NOT BE IMPOSED UNLESS THERE IS MENS REA ON THE PART OF THE ASSESSEE AND PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN STEEL LTD. V/S STAT E OF ORISSA (1972) 83 ITR 26 (SC). LD. AR ARGUED THAT PENALTY SHOULD BE DELETED. I.T.A. NO.528 TO 530 AND 532 TO 534/MUM/2011 3 5. LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE HAS HELD THAT THIS IS A FIT CASE FOR LEVY OF PENALTY U/S 271(1) (B) OF TH E ACT AND NO INTERFERENCE IN THE ORDER OF AO IS WARRANTED. WE REPRODUCE PARA 2.3.1 TO 2.3.4 OF THE CIT(A)S ORDER AS UNDER : 2.3.1. I HAVE CAREFULLY AND DISPASSIONATELY CONSID ERED THE FACTS AND CIRCUMSTANCES OF THE CASE, THE IMPUGNED PENALTY ORD ERS U/S. 271(1)(B) DATED 15/4/2010 AND THE ARGUMENTS MADE BY THE LD. COUNSEL BEFORE THE UNDERSIGNED. IT IS AN ADMITTED POSITION THAT THE LD. ASSESSING O FFICER ISSUED VARIOUS NOTICES U/S. 143(2) AND 142(1) OF THE ACT AND THE SAME WERE DULY SERVED UPON THE APPELLANT DIRECTLY. IT IS ALSO ADMITTED THAT THE AP PELLANT AND HIS GROUP CONCERNS REPEATEDLY FAILED TO COMPLY WITH THE TERMS OF THE N OTICES U/S.142(1) ISSUED AND DIRECTLY SERVED UPON THE APPELLANT. IT IS ALSO ADMI TTED THAT THE NOTICES ISSUED U/S 143(2) OF THE ACT WERE ALSO NOT COMPLIED WITH. ALL THE AFORESAID NOTICES WERE DULY SERVED ON THE APPELLANT DIRECTLY AND THE APPEL LANT WAS IN FULL KNOWLEDGE OF THE REPEATED NON-COMPLIANCE ON THEIR PART. NOBODY A TTENDED AND NO REQUISITE DETAILS WERE FILED. NO REASONABLE CAUSE HAS BEEN SH OWN AS TO WHY COMPLIANCE WAS NOT MADE BY THE APPELLANT. LD. COUNSEL HAS NOT BEEN ABLE TO DEMONSTRATE AS TO WHY THE APPELLANT FAILED TO FURNISH THE COMPLIAN CE REPEATEDLY AND FAILED TO COMPLY WITH THE TERMS OF THE NOTICES ISSUED U/S.142 (1)/143(2) OF THE ACT. EVEN THE LETTER OF AUTHORITY WAS NOT FILED BEFORE THE AS SESSING OFFICER. NO LETTER OF AUTHORITY NOR POWER OF ATTORNEY IN FAVOUR OF M/S.MA LPANI & ASSOCIATES, DULY EXECUTED BY THE APPELLANT, WAS FILED, NOT EVEN BEFO RE THE UNDERSIGNED. THE REASONABLE CAUSE HAS TO BE SHOWN BY THE APPELLANT A ND IT IS NOT FOR THE LD. ASSESSING OFFICER TO ESTABLISH CONTUMACIOUS CONDUCT ON THE PART OF THE APPELLANT OR DELIBERATE DEFIANCE OF LAW. NO EVIDENCE NOR MATE RIAL WAS PLACED BEFORE ME TO SHOW AS TO WHY NOTICES U/S.142(1)/143(2) WERE REPEA TEDLY AVOIDED AND NOT COMPLIED WITH. EVEN THE CIRCUMSTANCES UNDER WHICH T HE RELEVANT DETAILS WERE NOT FURNISHED WERE NOT PROPERLY EXPLAINED. AT LEAST, TH E APPELLANT COULD HAVE ATTENDED PERSONALLY OR THROUGH AUTHORIZED REPRESENT ATIVE AND COULD HAVE FURNISHED THE DETAILS AS CALLED FOR U/S.142(1)/143( 2) OF THE ACT. LD. ASSESSING OFFICER HAS GIVEN A FINDING OF FACT THAT NO LETTER OF AUTHORITY WAS FILED TILL THE LEVY OF PENALTY U/S.271(1)(B) OF THE ACT AND THE APPELLA NT COULD NOT REBUT THIS FINDING OF FACT BEFORE ME. 2.3.2. BEFORE ME, LD. AR HAS MADE A LEGAL PROPOSITI ON THAT NO MENSREA, NO PENALTY U/S.271(1)(B) OF THE ACT. I DO NOT AGREE WI TH THE AFORESAID LEGAL PROPOSITION IN VIEW OF THE FOLLOWING REASONS : 2.3.2.1 HONORABLE SUPREME COURT, THREE MEMBER BEN CH, DECIDED IN THE K. P. MADHUSUDHANAN VS. CIT (2001) 251 ITR 99 (SC) AS UND ER:- (A) EXPLANATION - 1 BELOW SECTION 271(1) BEING INT EGRAL PART OF SECTION 271(1)(C) CAN BE USED EVEN WHERE IT WAS NOT INVOKED IN THE SHOW CAUSE NOTICE U/S. 274 READ WITH SEC. 271(1)(C). THUS, THE CONTRARY DECISION OF THE MUMBAI HIGH COURT IN THE CASE OF CIT VS P. M. S HAH (1993) 204 ITR 462 (BOM) STANDS OVERRULED. (B) AFTER INTRODUCTION OF THE EXPLANATION, THE DEC ISION IN THE CASE OF SIR SHADILAL SUGAR & GENERAL MILLS LTD. V/S CIT 168 ITR 705 (SC), NO MORE HOLDS GOOD AND HENCE, FACT THAT THE ASSESSEE HAD AG REED FOR THE ADDITION IS NO MORE RELEVANT. THE EXPLANATION WAS INTRODUCE D TO MEET SUCH I.T.A. NO.528 TO 530 AND 532 TO 534/MUM/2011 4 SITUATIONS ONLY. MOREOVER, AFTER THE INTRODUCTION O F THE EXPLANATION, THE REVENUE HAS NOT TO PROVE MENS REA ON THE PART OF TH E ASSESSEE. (C) NO EXPRESS INVOCATION OF THE EXPLANATION TO SE CTION 271(1)(C) IN THE NOTICE U/S. 271(1)(C) IS NECESSARY FOR APPLYING THE PROVISIONS OF THE SAID EXPLANATION THEREFORE, IN THIS CASE THE REVENUE HAD DISCHARGED ITS ONUS AND IT DID NOT HAVE TO PROVE MENS REA IN THIS CASE . 2.3.2.2 HONBLE SUPREME COURT THREE MEMBERS BENC H IN THE CASE OF UNION OF INDIA AND ORS. V/S DHARMENDRA TEXTILE PROCESSORS REPORTED IN (2008) 306 ITR 277 RULED THAT THE OBJECT BEHIND ENACTMENT OF SECTI ON 271(1)(C) READ WITH EXPLANATION INDICATE THAT THE SAID SECTION HAS BEEN ENACTED TO PROVIDE FOR A REMEDY FOR LOSS OF REVENUE. PENALTY U/S. 271(1)( C ) IS A CIVIL LIABILITY. WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR ATTR ACTING CIVIL LIABILITY. THE EXPLANATIONS APPENDED TO SECTION 271(1)(C) ENTIRELY INDICATE THE ELEMENT OF STRICT LIABILITY ON THE ASSESSEE FOR CONCEALMENT OR FOR GI VING INACCURATE PARTICULARS WHILE FILING RETURN. IT WAS FURTHER OBSERVED THAT THE JUD GMENT IN DILIP N. SHROFF'S CASE HAD NOT CONSIDERED THE EFFECT AND RELEVANCE OF SECT ION 276C OF THE IT ACT. OBJECT BEHIND ENACTMENT OF SECTION 271(1)(C) R/W EXPLANATI ONS INDICATES THAT THE SAID SECTION HAS BEEN ENACTED TO PROVIDE FOR A REME DY FOR LOSS OF REVENUE. HONORABLE APEX COURT RULED THAT THE PENALTY UNDER T HAT PROVISION IS A CIVIL LIABILITY. WILLFUL CONCEALMENT IS NOT AN ESSENTIAL INGREDIENT FOR ATTRACTING CIVIL LIABILITY AS IS THE CASE IN THE MATTER OF PROSECUTI ON UNDER SECTION 276C OF THE IT ACT. IN UNION BUDGET OF 1996-97, SECTION 11AC OF TH E CENTRAL EXCISE ACT, 1944 WAS INTRODUCED. IT HAS MADE THE POSITION CLEAR THAT THERE IS NO SCOPE FOR ANY DISCRETION. THE HONORABLE SUPREME COURT HAD REFERRE D TO A CATENA OF DECISIONS WHICH HELD THAT MENS REA IS NOT AN ESSENTIAL ELEMEN T TO IMPOSE PENALTY FOR BREACH OF CIVIL APPLICATIONS. SOME OF THESE DECISIO NS OF HONORABLE APEX COURT ARE REFERRED TO AS UNDER : (A) DIRECTOR OF ENFORCEMENT V/S MCTM CORP (P) LTD : (SCC) PP.478 AND 480-81: IT WAS HELD THAT BREACH OF CIVIL APPLICATION WHICH ATTRACT PENALTY U/S 23(1)(A) WOULD IMMEDIATELY ATTRACT THE LEVY OF PENA LTY U/S 23, IRRESPECTIVE OF THE FACT THAT WHETHER THE CONTRAVEN TION WAS MADE BY THE DEFAULTER WITH ANY GUILTY INTENTION OR NOT. (B) J.K.INDUSTRIES LTD V/S CHIEF INSPECTOR OF FACTORIES AND BOILERS (SCC P.692, PARA 42) IT WAS HELD THAT THE OFFENCES UNDER THE ACT WAS NO T A PART OF GENERAL PENAL LAW BUT ARISE FROM THE BREACH OF A DUTY PROVI DED IN A SPECIAL BENEFICIAL SOCIAL DEFENSE LEGISLATION WHICH CREATES ABSOLUTE OR STRICT LIABILITY WITHOUT PROOF OF ANY MENS REA. (C ) R.S. JOSHI V/S AJIT MILLS LTD. ( SCC P. 110, PARA 19) IN THIS CASE HONBLE APEX COURT REJECTED THE NOTIO N THAT A PENALTY OR A PUNISHMENT CANNOT BE CAST IN THE FORM OF AN ABSOLUT E OR NO-FAULT LIABILITY BUT MUST BE PRECEDED BY MENS REA. IT WAS DECLARED T HAT THE CLASSICAL I.T.A. NO.528 TO 530 AND 532 TO 534/MUM/2011 5 VIEW THAT 'NO MENS REA, NO CRIME' HAS LONG AGO BEEN ERODED AND SEVERAL LAWS IN INDIA AND ABROAD, ESPECIALLY REGARDING ECON OMIC CRIMES AND DEPARTMENTAL PENALTIES, HAVE CREATED SEVERE PUNISHM ENTS EVEN WHERE THE OFFENCES HAVE BEEN DEFINED TO EXCLUDE MENS REA. (D ) GUJARAT TRAVANCORE AGENCY VS. CIT (SCC P. 55, PARA 4) IN THIS CASE HONORABLE APEX COURT HELD THAT IN THE CASE OF PROCEEDINGS U/S. 271(1)(A), THE INTENTION OF THE LEGISLATURE AS TO EMPHASISE THE FACT OF LOSS OF REVENUE AND TO PROVIDE A REMEDY FOR SUCH LO SS, AN ELEMENT OF COERCION IS PRESENT IN THE PENALTY. HONORABLE APEX COURT RULED THAT THERE IS NOTHING IN SECTION 271(1)(A) WHICH REQUIRES THAT MENS REA MUST BE PROVED BEFORE PENALTY CAN BE LEVIED. ( E) SWEDISH MATCH AB VS. SEBI (SCC P. 6 71, PARA 113) HONORABLE APEX COURT HELD THAT ONLY IN THE CRIMINAL PROCEEDINGS INITIATED AGAINST THE APPELLANTS, EXISTENCE OF MENS REA ON TH E PART OF THE APPELLANTS WILL COME UP FOR CONSIDERATION. MENS REA IS NOT AN ESSENTIAL ELEMENT FOR IMPOSING PENALTY FOR BREACH OF CIVIL AP PLICATIONS OR LIABILITIES. 2.3.3. IT IS FURTHER NOTICED THAT THE DEPARTMENT HA S FOUND AND SEIZED SEVERAL INCRIMINATING DOCUMENTS ON THE BASIS OF WHI CH THE APPELLANT GROUP HAS MADE SUBSTANTIAL DISCLOSURE OF UNACCOUNTED INCOME. HAVING SEEN THE RELEVANT RECORDS, THE APPELLANT'S DEFIANCE OF VARIOUS STATUT ORY NOTICES AND APPELLANT'S FAILURE TO FURNISH THE NECESSARY DETAILS HAVE BEEN NOTED. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND AFTER PERUS ING THE RELEVANT RECORD, IT IS NOTICED THAT THE APPELLANT IS CLEARLY GUILTY OF FAILURE TO COMPLY WITH THE NOTICES ISSUED U/S.142(1)/143(2) AS ALSO THE SHOW C AUSE NOTICES ISSUED AND SERVED UPON THE APPELLANT DIRECTLY. THE APPELLANT H AS FAILED TO EXPLAIN THE EXISTENCE OF ANY REASONABLE CAUSE BEFORE THE ASSESS ING OFFICER IN RESPONSE TO NOTICES ISSUED U/S. 271(1)(B) RWS 274 OF THE ACT. B EFORE THE UNDERSIGNED ALSO LD. AR HAS FAILED TO EXPLAIN THE EXISTENCE OF ANY R EASONABLE CAUSE. THE DEFAULT OF THE APPELLANT IS OF RECURRING NATURE IN AS MUCH AS IT IS REPETITIVE IN ALL THE ASSESSMENT YEARS REOPENED U/S.153A/153C OF THE ACT. SUCH REPETITIVE FAILURE AND LACKADAISICAL APPROACH OF THE APPELLANT CANNOT BE HELD TO BE REASONABLE CAUSE FOR FAILURE TO COMPLY WITH THE REQUIREMENT OF LAW. HONBLE ITAT IN THE FOLLOWING CASES HAVE HELD THAT NON COMPLIANCE WITH NOTICES U /S 143(2) AND 142(1) MERITED THE LEVY OF PENALTY U/S 271(1)( B) OF THE ACT (I) SHERE PUNJAB SILK STORE VS. ITO (1991) 39 - ITD (DEL) 469. (II) UP. STATE HANDLOOM CORPORATION LTD. VS. D CIT (1992) 42 - ITD - 208 (ALL) 2.3.4. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LIGHT OF AFORESAID DECISIONS, I AM SATISFIED TH AT THIS WAS A FIT CASE FOR LEVY OF PENALTY U/S. 271(1)(B) AND NO INTERFERENCE IN THE O RDERS OF THE LD. ASSESSING OFFICER PASSED U/S. 271(1)(B) IS WARRANTED. HENCE, THE ASSESSEE HAS FILED THESE APPEALS BEFORE THE TRIBUNAL. I.T.A. NO.528 TO 530 AND 532 TO 534/MUM/2011 6 6. AT THE TIME OF HEARING, LD. AR SUBMITTED THAT AS SESSEES REPRESENTATIVE APPEARED BEFORE THE AO AND FILED AN ADJOURNMENT LETTER. HE FURTHER SUBMITTED THAT THE ASSESSMENT ORDER ULTIMATELY WAS PASSED U/S 143(3) R .W.S.153A OF THE ACT AND REFERRED PAGES 35 TO 61 OF THE PAPER BOOK, COPY OF THE ASSE SSMENT ORDER PLACED THEREON. HE SUBMITTED THAT IT CANNOT BE SAID THAT THE ASSESSEE HAD NOT ATTENDED PROCEEDINGS BEFORE THE AO AND THEREFORE, LEVY OF PENALTY FOR NON COMPL IANCE OF NOTICES, AS MENTIONED BY AO IS NOT JUSTIFIED. LD. AR SUBMITTED THAT SIMILAR ISSUE ON THE SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE ALSO CAME BEFORE THE TRIB UNAL IN SMT. PRAMILA K.SETH V/S ACIT IN ITA NOS.606,608 TO 613/MUM/2011 FOR THE SA ME ASSESSMENT YEARS VIZ 2003-04 TO 2008-09 (WIFE OF ASSESSEE) AND THE TRIBUNAL VIDE EX-PARTE ORDER DATED 25.4.2013 HAS HELD THAT LEVY OF PENALTY IS NOT JUSTIFIED. LD. AR FILED A COPY OF THE SAID ORDER TO SUBSTANTIATE HIS ABOVE SUBMISSIONS. HE SUBMITTED THAT THE PENALTY CONFIRMED BY LD. CIT(A) FOR ALL THE ASSESSMENT YEARS UNDER CONSIDERA TION MAY BE DELETED. 7. ON THE OTHER HAND, LD. DR SUPPORTED THE ORDER OF LD. CIT(A). HE SUBMITTED THAT THE AO ISSUED NOTICE DATED 25.8.2009 U/S 143(2) AN D 142(1) OF THE ACT AND THE SAME WAS NOT COMPLIED WITH BY ASSESSEE. HE SUBMITTED THA T FILING OF ADJOURNMENT APPLICATION AND THAT TOO BY M/S MALPANI AND ASSOCIATES WITHOUT ANY AUTHORITY LETTER FROM THE ASSESSEE IS AS GOOD AS NON APPEARANCE. AO HAS RIG HTLY CONSIDERED THAT NOBODY ATTENDED ON BEHALF OF THE ASSESSEE IN RESPONSE TO T HE NOTICES ISSUED U/S 143(2) AND 142(1) OF THE ACT. HE FURTHER SUBMITTED THAT AO A GAIN ISSUED NOTICE U/S 142(1) DATED 12.10.2009 WITH QUESTIONNAIRE AND FIXING THE DATE O F HEARING ON 22.10.2009 AND THERE WAS NO RESPONSE FROM THE ASSESSEE TO THE SAID NOTIC E. THAT NO DOCUMENTS WERE FILED BY ASSESSEE. HE SUBMITTED THAT AO HAS AGAIN STATED THAT AN ADJOURNMENT REQUEST WAS MADE BY A LETTER FROM M/S MALPANI AND ASSOCIATES WITHOUT ANY AUTHORITY LETTER. THE LD. DR SUBMITTED THAT EVEN IN RESPONSE TO NOTICE ISSUED U/S 274 R.W. SECTION 271(1)(B) OF THE ACT FIXING THE DATE OF HEARING ON 5.4.2010, THE LETTER OF ADJOURNMENT WAS FILED BY M/S MALPANI AND ASSOCIATES WITHOUT ANY LETTER OF AU THORITY. LD. DR SUBMITTED THAT THERE IS NO COMPLIANCE OF STATUTORY NOTICES AND MERELY FI LING OF ADJOURNMENT LETTER DOES NOT AMOUNT TO COMPLIANCE OF STATUTORY NOTICE ISSUED BY AO. HE FURTHER SUBMITTED THAT EVEN BEFORE LD. CIT(A), THE AUTHORIZED REPRESENTAT IVE OF THE ASSESSEE APPEARED BEFORE HIM AND FILED AUTHORITY LETTER ALONG WITH WRITTEN SUBMISSION ON THE DATE ON WHICH IMPUGNED ORDER HAS BEEN PASSED BY LD. CIT(A). HE S UBMITTED THAT FOR NON COMPLIANCE OF STATUTORY NOTICES, IT IS NOT NECESSARY THAT THER E SHOULD BE AN ELEMENT OF MENS REA ON THE PART OF ASSESSEE. HE SUBMITTED THAT THE FAILURE TO COMPLY WITH THE STATUTORY NOTICES, FOR NO REASONABLE EXPLANATION IS DELIBERATE DEFIANC E OF LAW ON THE PART OF ASSESSEE AND I.T.A. NO.528 TO 530 AND 532 TO 534/MUM/2011 7 HENCE, THE PENALTY HAS RIGHTLY BEEN CONFIRMED BY LD. CIT(A) ON THE FACTS OF THE CASE. LD. DR SUBMITTED THAT THE ORDER OF THE TRIBUNAL DA TED 25.4.2013 HAS BEEN PASSED EX- PARTE MERELY ON THE GROUND THAT THE ADJOURNMENT APP LICATION WAS FILED ON BEHALF OF THE ASSESSEE BUT THE TRIBUNAL DID NOT CONSIDER THE FAC T THAT ADJOURNMENT APPLICATION WAS FILED BY THE PERSON WHO WAS NOT AUTHORIZED REPRE SENTATIVE OF ASSESSEE AS THERE WAS NO AUTHORITY LETTER IN FAVOUR OF THE PERSON WHO FIL ED THE ADJOURNMENT APPLICATION. HENCE, THE SAID ADJOURNMENT APPLICATION IS AS GOO D AS NON FILING OF ANY APPLICATION BY THE ASSESSEE. HE SUBMITTED THAT THE ORDER OF LD. C IT(A) MAY BE CONFIRMED WHICH IS SELF EXPLANATORY. 8. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. REPRES ENTATIVES OF PARTIES AND THE ORDERS OF AUTHORITIES BELOW. WE HAVE ALSO CONSIDER ED THE ORDER OF THE TRIBUNAL DATED 25.4.2013 (SUPRA). THERE IS NO DISPUTE TO THE FACT THAT THE NOTICES ISSUED BY THE AO TO THE ASSESSEE U/S 142(1)/143(2) WERE RECEIVED BY ASS ESSEE AND THE ASSESSEE REPEATEDLY AVOIDED THE COMPLIANCE THEREOF. WE OBSERVE THAT ON BEHALF OF THE ASSESSEE ADJOURNMENT APPLICATION WAS FILED, BUT THE AO INDI CATED TO THE CONCERN PERSONS WHO FILED THE ADJOURNMENT APPLICATION, TO FILE AUTHORIT Y LETTER. WE OBSERVE THAT IT IS NOT ONE OCCASION, BUT THERE ARE THREE OCCASIONS, AS INDICA TED HEREINABOVE THAT NO AUTHORITY LETTER WAS FILED BY CONCERN PERSON WHO SOUGHT ADJOU RNMENTS IN RESPECT OF WHICH THE AO INDICATED TO FILE THE AUTHORITY LETTER. WE OB SERVE THAT LD. CIT(A) HAS ALSO STATED THAT BEFORE HIM ALSO AUTHORITY LETTER AND THE WRITT EN SUBMISSION WAS FILED ON 11.11.2010, THE DATE ON WHICH THE LD. CIT(A) HAS PASSED THE IMP UGNED ORDER CONFIRMING THE ACTION OF AO OF LEVY OF PENALTY U/S 271(1)(B) OF THE ACT. CONSIDERING THE ABOVE FACTS WE ARE OF THE CONSIDERED VIEW THAT THERE IS DELIBERATE DEFIA NCE ON THE PART OF THE ASSESSEE TO COMPLY WITH THE STATUTORY NOTICES AND TO FURNISH R EQUISITE DETAILS. THE CONTENTION OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW THAT THERE IS NO MENS REA ON THE PART OF THE ASSESSEE, WE AGREE WITH THE LD. CIT(A) THAT THERE I S NOTHING IN SECTION 271(1)(B) OF THE ACT WHICH REQUIRES THAT MENS REA MUST BE PROVED BEF ORE THE PENALTY CAN BE LEVIED. HENCE, MENS REA IS NOT AN ESSENTIAL ELEMENT FOR IMP OSING PENALTY FOR NON COMPLIANCE OF NOTICES ISSUED BY AO. CONSIDERING THE REPETITIVE FAILURE AND THE LACKADAISICAL APPROACH OF THE ASSESSEE, WE HOLD THAT LD. CIT(A) HAS RIGHTL Y HELD THAT IT CANNOT BE SAID TO BE A REASONABLE CAUSE FOR FAILURE TO COMPLY WITH THE NOT ICES ISSUED BY AO U/S 143(2)/142(1) OF THE ACT. THE RELIANCE PLACED BY THE LD. AR UPO N THE CASE OF ASSESSEES WIFE SMT. PRAMILA K.SETH (SUPRA) DATED 25.4.2013 (SUPRA) CA NNOT BE CONSIDERED TO BE PRECEDENT TO DELETE THE PENALTY IN THE CASE OF ASSESSEE BEFOR E US AS THE LEVY OF PENALTY FOR NON COMPLIANCE OF STATUTORY PROVISIONS OF THE ACT HAS T O BE CONSIDERED IN THE LIGHT OF ITS OWN I.T.A. NO.528 TO 530 AND 532 TO 534/MUM/2011 8 FACTS AND CIRCUMSTANCE. IT CANNOT BE SAID THAT IF NO FINE IS LEVIED ON ACCOUNT OF COMMITTING THE OFFENCE BY ONE PERSON, THE OTHER PER SON SHOULD ALSO NOT BE FINED FOR COMMITTING THE SAME OFFENCE. THEREFORE, WE HOLD TH AT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE ORDER OF AO FOR LEVY OF PENALTY U/S 271(1)(B) OF THE ACT OF RS.10,000/- FOR EACH OF THE ASSESSMENT YEAR UNDER CONSIDERATION. HENCE, WE UPHOLD THE ORDER OF LD. CI T(A) BY REJECTING THE GROUND(S) OF APPEAL TAKEN BY ASSESSEE FOR EACH OF THE ASSESSMENT YEAR UNDER CONSIDERATION VIZ ASSESSMENT YEARS 2003-04 TO 2008-09. 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28TH AUG, 20 13 * SD/- SD/- ( /RAJENDRA ) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 3 DATED / 08/2013 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. & / THE APPELLANT 2. ' & / THE RESPONDENT. 3. 4 ( ) / THE CIT(A)- CONCERNED 4. 4 / CIT CONCERNED 5. 5 '7 , - 7 , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) - 7 , /ITAT, MUMBAI