No Penalty under section 271(1)(b) for non compliances with the notices if the order was passed under section 143(3): Delhi ITAT

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No Penalty under section 271(1)(b) for non compliances with the notices if the order was passed under section 143(3): Delhi ITAT

 

Jai Gopal Sondhi v. ITO 
 Date of Judgement : 28.10.2020 
(ITAT Delhi)
Short overview of the case:
Assessing Officer has levied penalty in all the four cases for non-compliance of statutory notices, all the same he has proceeded to frame the assessment order under section 143(3) of the Act.
The CIT(A), while dismissing the assessees’ appeals has observed on identical lines in all the four impugned orders that subsequent compliance by the assessee to the statutory notices cannot be a basis for non levy of penalty on account of earlier defaults.
The Ld. CIT(A) has also observed in all the four impugned orders that the claim of the assessees that no penalty is leviable since the assessment orders had been issued under section 143(3) was not acceptable as the impugned penalty had been levied for specific defaults on specific dates.
We are of the considered opinion that we are bound by the judicial precedent laid down by the Co-ordinate Bench of this Tribunal in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust v. ADIT (2008) 115 TTJ 419 (Del.) wherein the Tribunal had taken a view that where the assessee had not complied with notice under section 142(1) of the Act but the assessment order was passed under section 143(3) of the Act and not under section 144 of the Act, that meant that subsequent compliance of assessment proceedings was considered as good compliance and defaults committed earlier were ignored by Assessing Officer and, therefore, levy of penalty under section 271(1)(b) was not justified.
 The facts in these four appeals are identical to the facts in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust v. ADIT (supra) and further the Department has also not pointed out any order in favour of the Department in this regard.
Therefore, respectfully following the order of the Co-ordinate Bench of this Tribunal in the case of Akhil Bhartiya Prathmik Shikshak Sangh Bhawan Trust v. ADIT (supra), we set aside the impugned orders in all the four appeals and direct the Assessing Officer to delete the penalty. (Related Assessment Year : 2013-14)
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