Gagan Gautam, Delhi V. ITO, Ward- 5(1), New Delhi

ITA 5996/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0717 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Additional evidence; Reasonable cause; Reassessment proceedings; TDS; Set aside
• Section: 273B; 143(3); 142(1); 143(2); 27; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI BENCH: SMC-1 NEW DELHI BEFORE SHRI KUL BHARAT, JUDICAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] ITA NO.5996/DEL/2019 ASSESSMENT YEAR: 2010-11 SH. GAGAN GAUTAM, 381/5, GALI NO. 1, THAN SINGH NAGAR, ANAND PARBAT, NEW DELHI VS. ITO, WARD-5(1), NEW DELHI PAN :AJSPG8402H (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORD ER DATED 10/05/2019 PASSED BY THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS)-17, NEW DELHI [IN SHORT THE LEARNED CIT( A)] IN RELATION TO PENALTY LEVIED BY THE ASSESSING OFFICER UNDER SE CTION 271(1)(B) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) FO R ALLEGED NON- COMPLIANCE OF NOTICES ISSUED DURING ASSESSMENT PROC EEDING FOR APPELLANT BY SHRI A.K. SRIVASTAVA, CA RESPONDENT BY SHRI R. K. GUPTA, SR. DR DATE OF HEARING 28.06.2021 DATE OF PRONOUNCEMENT 09.07.2021 2 ITA NO. 5996/DEL/2019 ASSESSMENT YEAR 2010-11. THE GROUNDS RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT (APPEALS) ERRED IN UPHOLDING PENALTY OF RS. 70,000/- AS AGAINST PENALTY OF RS. 80,000/- LEVIED BY THE ASSES SING OFFICER U/S 271(L)(B) OF THE INCOME-TAX ACT, 1961. 2. THAT THE OBSERVATIONS OF THE LD.CIT (APPEALS) B EING CONTRARY TO THE ACTUAL FACTS, THE ORDER SUSTAINING THE PENALTY IS B AD IN LAW AND PENALTY DESERVED TO BE SET ASIDE. 3. THAT THE LD.CIT (APPEALS) HAVING FAILED TO APPR ECIATE THAT THE ASSESSEE HAD CHALLENGED THE REOPENING OF ASSESSMENT AND THE ASSESSEES REQUESTS MADE FROM TIME TO TIME TO PROVI DE THE REASONS RECORDED FOR REOPENING AND SANCTION OF APPR OPRIATE AUTHORITY HAVING NOT BEEN PROVIDED, THE ASSESSEE WA S CONSTRAINED TO PROVIDE THE DETAILS AND ORE THE ORDE R LEVYING PENALTY IS BAD IN LAW. 4. THAT THE LD.CIT (APPEALS) OUGHT TO HAVE HELD THA T THE ADDITION MADE TO THE RETURNED INCOME HAVING BEEN DELETED IN APPEAL BEFORE THE CIT (APPEALS) AND THE ASSESSEE HAVING COMPLIED WITH THE NOTICES THROUGH EMAILS, NO PENALTY IS LEVIABLE. 5. THAT UNNECESSARY HARASSMENT HAVING BEEN CAUSED TO THE ASSESSEE BY THE IRRESPONSIBLE ACTION OF THE DEPARTM ENT, PROPER COST BE LEVIED ON THE DEPARTMENT. THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, AMEND , MODIFY, VARY OR DELETE ANY GROUND OF APPEAL BEFORE OR AT THE TIM E OF HEARING. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT IN VIEW OF THE CASH DEPOSITS OF 14,89,775/- OBSERVED IN BANK ACCOUNT, ASSESSMENT PROCEEDINGS WERE REOPENED BY WAY OF ISSUE OF NOTICE DATED 30/03/2017 UNDER SECTION 148 OF THE ACT BY THE INCO ME TAX OFFICER, ASHOK NAGAR, MADHYA PRADESH. IN RESPONSE T O SAID NOTICE, THE ASSESSEE FILED RETURN OF INCOME ON 03/0 5/2017 DECLARING TOTAL INCOME OF 1,89,280/-. THEREAFTER, THE CASE WAS TRANSFERRED TO THE INCOME TAX OFFICER, WARD 50(1), NEW DELHI (I.E. THE LD. ASSESSING OFFICER), WHO HAS PASSED THE ASSE SSMENT ORDER. THEREAFTER, THE ASSESSING OFFICER COMMENCED ASSESSM ENT PROCEEDINGS, WHICH HAS BEEN COMPLETED UNDER SECTION 144 OF THE ACT AS BEST JUDGMENT ASSESSMENT ON 27/12/2017. THE ASSESSING 3 ITA NO. 5996/DEL/2019 OFFICER HAS RECORDED IN THE ASSESSMENT ORDER NON-CO MPLIANCE OF NOTICES ISSUED UNDER SECTION 143(2) AND 142(1) OF T HE ACT BY THE ASSESSEE. FOR THOSE NON-COMPLIANCES, THE ASSESSING OFFICER INITIATED PENALTY PROCEEDINGS IN TERMS OF SECTION 2 71(1)(B) OF THE ACT. BEFORE THE ASSESSING OFFICER, THE ASSESSEE REQ UESTED TO KEEP THE PENALTY IN ABSENCE, HOWEVER, THE ASSESSING OFFI CER LEVIED PENALTY OF 80,000 ( 10,000 EACH FOR EIGHT NUMBER OF DEFAULTS) IN HIS ORDER DATED 26/06/2018. AGGRIEVED, THE ASSES SEE FILED APPEAL BEFORE THE LEARNED CIT(A) AND MADE DETAILED SUBMISSIONS CONTESTING THE ALLEGATION OF NON-COMPLIANCE. THE SA ID SUBMISSION HAVE BEEN REPRODUCED BY THE LD. CIT(A) ON PAGE 6 TO 9 OF THE IMPUGNED ORDER. THE LD. CIT(A) HAS SUMMARIZED THE A LLEGED NON- COMPLIANCES BY THE ASSESSEE ON PAGE 10 OF THE IMPUG NED ORDER. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, T HE LEARNED CIT(A) DELETED THE PENALTY OF 10,000/- FOR ONE DEFAULT, HOWEVER UPHELD PENALTY OF RS.70,000/- IN RESPECT OF THE RE MAINING DEFAULTS, OBSERVING AS UNDER: 6.4 HONBLE ITAT DELHI G BENCH IN THE CASE OF AK HIL BHARTIYA PRATHMIK SHIKSHAK SANGH BHAWAN TRUST VS. ASSISTANT DIRECTOR OF INCOME TAX (2008) 115 TTJ (DELHI) 419 HELD THAT IF ASSESSMENT ORDER IS PASSED U/S 143(3) AND NOT U/S 144 THEN NON-COMPL IANCE IS DEEMED TO HAVE BEEN WAIVED. SINCE, IN THIS CASE, TH E ORDER PASSED IS U/S 144 OF THE ACT, THEREFORE, THE NON-COMPLIANC E CANNOT BE DEEMED TO HAVE BEEN WAIVED. 6.5 FURTHER IT IS IMPORTANT TO NOTE THAT SECTION 27 3B DOES PROVIDE THAT THE PENALTY IS NOT TO BE IMPOSED IF THE ASSESS EE HAS REASONABLE CAUSE FOR NON-COMPLIANCE. SINCE, IN THIS CASE, THE ASSESSEE HAS FAILED TO FURNISH ANY EXPLANATION TO JUSTIFY THE NO N-COMPLIANCE, THEREFORE, IT IS A FIT CASE FOR IMPOSITION OF PENAL TY UNDER SECTION 271(L)(B) OF THE I.T. ACT. 6.6 IN VIEW OF THE ABOVE DISCUSSION, I FIND THAT TH E ASSESSEE HAS FAILED TO EXPLAIN THE REASONS FOR NON-COMPLIANCE. T HEREFORE, I FIND THAT THE ASSESSING OFFICER HAS CORRECTLY INVOKED PE NALTY U/S 271(L)(B) OF THE INCOME TAX ACT, 1961 IN THIS CASE. AS THE AS SESSEE HAS 4 ITA NO. 5996/DEL/2019 ATTENDED ONE HEARING IN RESPONSE TO NOTICE ISSUED 0 7.11.2017, THE PENALTY U/S 271(L)(B) IS RESTRICTED TO RS. 70,000/- . 2.1 AGGRIEVED WITH THE ABOVE FINDING OF THE LD. CIT(A) , THE ASSESSEE IS IN APPEAL BEFORE THE INCOME TAX APPELLA TE TRIBUNAL (IN SHORT THE TRIBUNAL) RAISING THE GROUNDS AS REPROD UCED ABOVE. 3. BEFORE US, THE PARTIES APPEARED THROUGH VIDEO CONFE RENCING FACILITY AND FILED DOCUMENTS ELECTRONICALLY THROUGH EMAIL. 4. BEFORE US, THE LEARNED COUNSEL OF THE ASSESSEE SUB MITTED THAT THE ASSESSEE OBJECTED THE REASSESSMENT PROCEED INGS, HOWEVER, SAID OBJECTION WAS NOT DISPOSED OFF BY THE ASSESSING OFFICER BEFORE PASSING OF THE ASSESSMENT ORDER UNDE R SECTION 144 OF THE ACT. THE LEARNED COUNSEL ALSO MENTIONED THAT THE ASSESSING OFFICER IGNORED THE INFORMATION PROVIDED BY THE ASSESSEE, WHEREIN HE EXPLAINED THE SOURCE OF INCOME AND CASH DEPOSITS. THE LEARNED COUNSEL ALSO SUBMITTED THAT O N 20/11/2017, THE ASSESSEE PERSONALLY APPEARED BEFORE THE ASSESSING OFFICER, HOWEVER, HIS SUBMISSION WAS NEIT HER ACCEPTED BY THE ASSESSING OFFICER, NOR BY THE AYAKAR SEWA KE NDRA (ASK) RECEIPT COUNTER, AND THEREFORE, HE WAS FORCED TO SE ND SUBMISSION BY SPEED POST. ACCORDING TO THE ASSESSEE, THE ASSES SMENT WAS REOPENED WITHOUT ANY JURISDICTION AND PRELIMINARY O BJECTION FILED BY THE ASSESSEE WAS NOT DISPOSED OF BY THE ASSESSIN G OFFICER. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE FIRST AP PELLATE AUTHORITY HAS DELETED ALL THE QUANTUM ADDITIONS ON THE BASIS OF THE SUBMISSIONS AND EXPLANATION OF THE ASSESSEE. HE SUBMITTED THAT WHEN THE LD. CIT(A) HAS DELETED THE ADDITION O N THE BASIS OF THE EXPLANATIONS OF THE ASSESSEE WHICH WERE FILED B EFORE THE ASSESSING OFFICER, THERE IS NO JUSTIFICATION OF LEV YING PENALTY FOR 5 ITA NO. 5996/DEL/2019 NON-COMPLIANCE. THUS, THERE IS NO NON-COMPLIANCE IN TRUE SENSE AND IT IS MERELY A TECHNICAL OR VENIAL BREACH AND T HEREFORE PENALTY LEVIED SHOULD BE DELETED. 5. THE LEARNED DR, ON THE OTHER HAND, RELIED ON THE O RDER OF THE LOWER AUTHORITIES AND SUBMITTED THAT IN VIEW OF THE NON- COMPLIANCE ON THE PART OF THE ASSESSEE OF VARIOUS N OTICES ISSUED SEEKING EXPLANATION OF THE CASH DEPOSITS IN THE BAN K ACCOUNTS, THE ASSESSING OFFICER WAS FORCED TO PASS THE ORDER IN BEST JUDGEMENT MANNER ( I.E. EX PARTE) AND THUS THE ASSE SSING OFFICER IS JUSTIFIED IN LEVYING THE PENALTY. 6. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE. A TABLE OF NON-COMPLIANCE LISTED BY THE LEARNED CIT(A) IN THE IMPUGNED ORDER IS REPRODUCED AS UNDER: S. NO. NOTICE DATE OF NOTICE DATE OF HEARING REMARKS 1 143(2) 26.09.17 06.10. 17 NO COMPLIANCE 2 142(1) 09.10.17 16.10.17 NO COMPLIANCE 3 142(1) 07.11.17 14.11.17 ASSESSEE HIMSELF ATTENDED BUT DID NOT FILE ANY REQUISITE DETAILS, ON REQUEST, CASE WAS ADJOURNED TO 21.11.2017 4 ADJOURNMENT 14.11.17 21.11.17 NO COMPLIANCE 5 142(1) MARKED AS 'FINAL OPPORTUNITY' 24.11.17 29.11.17 AN EMAIL RECEIVED FROM ASSESSEE WITH A REQUEST FOR ADJOURNMENT BUT DID NOT FILE ANY REQUISITE DETAILS. ON REQUEST CASE WAS ADJOURNED TO 06.12.2017 6. ADJOURNMENT 29.11.17 06.12.17 ON 04.12.2017, AN E- MAIL RECEIVED FROM ASSESSEE WITH A REQUEST FOR ADJOURNMENT BUT DID NOT FILE ANY REQUISITE DETAILS. ASSESSEE WAS REQUESTED TO APPEAR ON 06.12.2017. ON 06.12.2017, NONE ATTENDED. 7 142(1) MARKED AS LAST AND FINAL OPPORTUNITY 07.12.17 13.12.17 ON 13.12.2017, AN E- MAIL RECEIVED FROM ASSESSEE WITH A REQUEST FOR ADJOURNMENT BUT DID NOT FILE FILE ANY REQUISITE DETAILS. CONSIDERING THE REQUEST, ASSESSEE WAS ASKED TO FILE THE REQUISITE DOCUMENT EITHER THROUGH AR OR THROUGH E- MAIL ON OR BEFORE 15.12.2017 . 6 ITA NO. 5996/DEL/2019 8 ADJOURNMENT 13.12.17 15.12.17 ON 15.12.2017, ASSESSEE SENT AN EMAIL BUT DID NOT FILE ANY SUBMISSION 6.1 WE FIND FROM ABOVE TABLE THAT THE PENALTY IN RESPE CT OF DEFAULT AT SERIAL NO. 3 (THREE) FOR NON-COMPLIANCE OF NOTICE DATED 07/11/2017, HAS ALREADY BEEN DELETED BY THE LEARNED CIT(A) AS THE ASSESSEE ATTENDED ON THAT DATE AND ON HIS REQUE ST CASE WAS ADJOURNED TO ANOTHER DATE. WE FIND THAT IN RESPECT OF DEFAULT LISTED AT SERIAL NO. 5, THE NOTICE WAS ISSUED ON 24 /11/2017 FOR HEARING FIXED ON 29/11 2017. IT IS EVIDENT FROM THE THIRD COLUMN, THAT CASE WAS ADJOURNED TO 06/12/2017 AND THEREFORE , WE DO NOT FIND ANY REASON FOR LEVYING PENALTY, WHEN THE ASSES SING OFFICER HIMSELF ADJOURNED THE MATTER TO ANOTHER DATE. AGAIN ST THE DEFAULT LISTED AT SERIAL NO. 6 OF THE TABLE, WE FIND THAT T HE ASSESSEE SENT AN E-MAIL ON 04/12/2017 FOR HEARING DATED 06/12/201 7. THE ASSESSEE WAS NOT COMMUNICATED AT REFUSAL OF ADJOURN MENT AND THEREFORE THE ASSESSEE DID NOT ATTEND ON 06/12/2017 . IN OUR OPINION, THERE IS A REASONABLE CAUSE FOR FAILURE TO ATTEND ON SAID DATE IN VIEW OF THE ADJOURNMENT APPLICATION FILED B Y HIM. IN RESPECT OF DEFAULT LISTED AT SERIAL NO. 7 AND 8, AL SO THE ASSESSEE SOUGHT ADJOURNMENT THROUGH EMAIL. WE ALSO FIND THAT MOST OF THE NON-COMPLIANCE IS WITHIN THE PERIOD OF ONE MONTH I. E. FROM 14/11/2017 TO 13/12/2017. THE ASSESSING OFFICER HIMSELF HAS CLAIMED IN PARA 2 OF THE ASSESSMENT ORDER THAT CASE WAS TRANSFERRED TO HIM BECAUSE JURISDICTION LIED WITH H IM. IT IS ALSO TO BE NOTED THAT OBJECTION OF THE ASSESSEE AGAINST REO PENING WAS NOT DISPOSED OFF BY THE ASSESSING OFFICER, WHICH IS ONE OF THE PREREQUISITE FOR VALIDITY OF REASSESSMENT PROCEEDIN GS. 7 ITA NO. 5996/DEL/2019 6.2 IN QUANTUM APPELLATE PROCEEDING, THE ASSESSEE CHAL LENGED THE REASSESSMENT PROCEEDINGS ON THE GROUND THAT THE RE WAS NO APPLICATION OF THE MIND IN THE REASONS RECORDED. AC CORDING TO THE ASSESSEE, HE HAD FILED REGULAR RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, WHEREAS THE REASONS RECORDED THE ASS ESSING OFFICER HAS NOTICED THAT NO RETURN WAS FILED FOR THE RELEVA NT ASSESSMENT YEAR. THE ASSESSEE ALSO CHALLENGED THE JURISDICTION OF THE INCOME TAX OFFICER AT ASHOK NAGAR, MADHYA PRADESH IN ISSUI NG NOTICE UNDER SECTION 148 OF THE ACT. THE LD. FIRST APPELLA TE AUTHORITY HOWEVER ALLOWED THE APPEAL OF THE ASSESSEE ON MERIT OF THE ADDITION OBSERVING AS UNDER: 6. IN GROUND NO. 7, THE APPELLANT HAS CHALLENGED T HE ADDITION AMOUNTING TO RS.16,23,775/- AS PER THE CREDITS IN T HE BANK ACCOUNT OF THE APPELLANT MAINTAINED IN PUNJAB NATIONAL BANK FOR THE YEAR UNDER CONSIDERATION. IT HAS BEEN ARGUED BY THE APPE LLANT THAT THIS NATURE OF RECEIPTS FALLS UNDER THE PROVISION OF SEC TION 44AF OF THE ACT AS HE IS IN THE RETAIL BUSINESS OF SELLING POOJA IT EMS, RELIGIOUS OBJECTS RELATED TO RITUALS ETC AND THEREFORE, HE IS NOT REQ UIRED EITHER TO GET HIS ACCOUNTS AUDITED OR TO MAINTAIN BOOKS OF ACCOUNTS B ECAUSE HE HAS DISCLOSED MORE THAN 5% OF TOTAL TURNOVER AS PROFITS . HE HAS ALSO EARNED SOME PROFESSIONAL INCOME FOR GIVING ADVICE O F ASTROLOGY TO VARIOUS PERSONS. IT IS CONTENDED THAT HIS EARNINGS ARE IN SMALL AMOUNTS, IN CASH, FOR MOST OF THE TIME AND HE KEEPS ON DEPOSITING THE CASH PERIODICALLY. SIMULTANEOUSLY, THE CASH IS ALSO WITHDRAWN FOR THE PURCHASES SUCH AS POOJA ITEMS ETC AS MANY W ITHDRAWALS ARE REFLECTED IN CASH, ALONG WITH CASH DEPOSITS. IT IS FURTHER CONTENDED THAT SUCH SALES AND PURCHASES REPRESENTING DEPOSITS AND WITHDRAWALS IN THE BANK ACCOUNT RELATES TO THE RETA IL BUSINESS AND PROVISIONS OF SECTION 44AF IS DULY APPLICABLE. 6.1 IT IS SEEN FROM ASSESSMENT ORDER THAT AO HAS CO NCEDED ABOUT THE ORIGINAL RETURN FILED BY THE APPELLANT BUT THE SAME WAS TREATED AS INVALID DUE TO THE FACT THAT PROVISION OF SECTIO N 44AF WAS NOT MENTIONED IN EARLIER RETURN. FURTHER, IN THE RETURN , FILED IN RESPONSE TO NOTICE U/S 148 THE APPELLANT HAS DECLARED THE RE CEIPTS U/S 44AF BUT THE SAME WAS NOT ACCEPTED BY THE AO, IN THE ABS ENCE OF ANY DETAILS FURNISHED BY THE ASSESSEE. 6.2 HERE IT IS PERTINENT TO NOTE THAT AT THE TIME O F REOPENING THE THEN AO WAS NOT IN THE KNOWLEDGE OF ORIGINAL RETURN. IT IS NOT CLEAR WHETHER ANY NOTICE ISSUED TO TREAT THE ORIGINAL RET URN OF INCOME AS DEFECTIVE OR NON-EST. FURTHER, THE RETURN SUBMITTED IN RESPONSE TO 8 ITA NO. 5996/DEL/2019 NOTICE U/S 148, THE APPELLANT HAS MENTIONED ABOUT H IS INCOME FALLING WITHIN 44AF OF THE ACT. EVEN IF THE ORIGINAL RETURN IS TREATED AS INVALID, NOTHING HAS BEEN BROUGHT ON RECORD TO SUBS TANTIATE THAT APPELLANT IS NOT IN RETAIL BUSINESS. NOTHING HAS BE EN BROUGHT ON RECORD BY THE AO TO SAY THAT ASSESSEE IS NOT IN THE BUSINESS OF RETAIL TRADING OF POOJA ITEMS OR IN THE PROFESSION OF CONS ULTANCY IN ASTROLOGY. ON THE OTHER HAND, IN HIS RETURN, IN RES PONSE TO NOTICE U/S 148 OF THE ACT, THE APPELLANT HAS DISCLOSED IT AS P ROFIT OUT OF THE RETAIL BUSINESS, FALLING WITHIN THE MEANING OF PROV ISIONS OF SECTION 44AF OF THE ACT. IT IS CLEAR FROM THE PROVISION OF SECTION 44AF OF THE ACT THAT APPELLANT IS NOT REQUIRED TO MAINTAIN OR G ET HIS BOOKS OF ACCOUNTS AUDITED ESPECIALLY WHEN HE HAS SHOWN PROFI TS ABOVE THE THRESHOLD LIMIT. 6.3 IN SUCH CIRCUMSTANCES, LOOKING TO THE SCHEME OF THE ACT, NO FURTHER DETAILS ARE REQUIRED AS SUCH. THE BANK ACCO UNT CLEARLY INDICATES THE RECEIPTS AND WITHDRAWALS HOWEVER, THE AO HAS ONLY TAKEN THE RECEIPTS AND DISREGARDED WITHDRAWALS AS E XPENDITURE WITHOUT ANY BASIS. 6.4 IT IS ALSO SEEN THAT THE ASSESSEE HAS CONSIDERE D RS. 15,18,775/- AS HIS GROSS RECEIPTS FOR COMPUTATION OF PROFIT FOR RETAIL BUSINESS AND DISCLOSED MORE THAN 5% AND ALSO RS. 1,05,000/- AS I NCOME FROM PROFESSIONAL CONSULTANCY. THERE ARE CERTAIN OTHER R ECEIPTS IN CASH ALSO WHICH HAS BEEN DULY CONSIDERED AND THE GROSS T OTAL INCOME AMOUNTING TO RS. 2,03,690/- HAS BEEN DULY WORKED OU T. 6.5 FROM ABOVE DISCUSSIONS IT IS VERY CLEAR THAT TH E APPELLANT HAS PROPERLY DISCLOSED HIS INCOME U/S 44AF OF THE ACT, WHEREIN ALL THE RECEIPTS HAVE BEEN CONSIDERED. AO WAS UNABLE TO EST ABLISH BEYOND DOUBT THAT ASSESSEE IS NOT EARNING SUCH BUSINESS IN COME, NOR CONSIDERED THE EXPENDITURE INVOLVED. IN VIEW OF THI S AND LOOKING TO THE FACTS AND CIRCUMSTANCES OF THIS CASE AND IN LAW THE ADDITIONS IS NOT SUSTAINABLE AND ACCORDINGLY, THE SAME IS DIRECT ED TO BE DELETED AND APPELLANT IS REQUIRED TO BE ASSESSED AT THE INC OME DISCLOSED BY HIM, VOLUNTARILY. THEREFORE, THIS GROUND OF APPEAL IS ALLOWED. 6.3 THE LD. CIT(A) DID NOT ADJUDICATE ON LEGAL GROUNDS CHALLENGED BY THE ASSESSEE. FROM THE ABOVE OBSERVAT ION OF THE LD. FIRST APPELLATE AUTHORITY IN QUANTUM APPELLATE PROC EEDING, WE FIND THAT HE HAS DECIDED THE APPEAL ON THE BASIS OF THE SUBMISSION AND EXPLANATION WHICH WERE FILED BEFORE THE ASSESSI NG OFFICER WITHOUT TAKING ANY ADDITIONAL EVIDENCE ON RECORD. T HIS MEANS THAT INFORMATION WHICH WAS REQUIRED FOR COMPLETING THE ASSESSMENT WAS ALREADY FILED BY THE ASSESSEE BEFORE THE ASSESSING 9 ITA NO. 5996/DEL/2019 OFFICER AND NON-ATTENDANCE OR NON-FILING OF INFORMA TION BY THE ASSESSING OFFICER IN RESPONSE TO VARIOUS NOTICES IS RENDERED MERELY A TECHNICAL OR VENIAL BREACH WHEN THE ADDITI ON HAS ALREADY BEEN DELETED BY THE LEARNED CIT(A) IN QUANTUM APPEA L PROCEEDINGS KEEPING IN VIEW THE EXPLANATION REGARDI NG THE SOURCE OF CASH DEPOSITS. IN VIEW OF SECTION 273B OF THE ACT, WHEN THE ASSESSEE HAS COMPLIED WITH THE NOTICE ISSUED BY THE AO THE PENALTY WAS NOT IMPOSABLE AS THE EXPLANATION FILED BY THE ASSESSEE WAS FINALLY FOUND TO BE CORRECT AND ACCEPT ED IN THE QUANTUM APPEAL. 6.4 IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE D O NOT FIND ANY JUSTIFICATION FOR SUSTAINING THE PENALTY LEVIED BY THE ASSESSING OFFICER AND ACCORDINGLY, WE CANCEL THE PENALTY SUST AINED BY THE LEARNED CIT(A). THE GROUNDS OF THE APPEAL OF THE AS SESSEE ARE ACCORDINGLY ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH JULY, 2021 SD/- SD/- (KUL BHARAT) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 9 TH JULY, 2021. RK/- (DTDS) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI