IN INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER ITA No. 663/JP/2016 Assessment Year : 2008-09 Shri Abdul Sami cuke ITO H.No. 1842, Naheron Ki Nadi Vs. Ward- 7(3) Chokdi Ramchandra Ji Ki Jaipur Ramganj Bazar, Jaipur PAN/GIR No.: ANPPS 5802 Appellant Respondent Assessee by: Shri Shrawan Kumar Gupta, Advocate Revenue by :Shri R.A. Verma, Addl CIT-. DR Date of Hearing : 06/10/2016 Date of Pronouncement : 19 /10/2016 ORDER PER BHAGCHAND, AM assessee has filed appeal against order of ld. CIT(A)-3, Jaipur dated 29-04-2016 for assessment year 2008-09 raising therein following grounds:- 1.1 impugned penalty order u/s 271(1)(b) dated 21- 11-2013 is bad in law and on facts of case for want of jurisdiction and various other reasons and hence same may kindly be quashed. 2 ITA No. 663/JP/2016 Shri Abdul Sami vs. ITO, 7 (3), Jaipur . 1.2 AO further erred in law as well as on facts of case in passing ex-partie order u/s 271(1)(b) without affording adequate and reasonable opportunity of being heard to assessee. impugned order having been framed in gross breach of natural justice which was totally contrary to provisions of law and facts of case, hence order of AO may kindly be quashed. 2. ld. CIT(A) has grossly erred in law as well as on facts of case in confirming penalty of Rs. 30,000/- imposed u/s 271(1)(b) by AO. Hence, penalty so imposed by AO and confirmed by ld. CIT(A) is being totally contrary to provisions of law ad facts on record and hence addition may kindly be quashed in full. 2.1 Ground No. 1 and 1.1 of assessee are general in nature which needs no adjudication. Hence, same are dismissed. 3.1 As regards Ground No. 2 of assessee, brief facts as emerges from order of ld. CIT(A) is reproduced as under:- 4.1 Assessment in this case was completed u/s 147/144 of Act, 1961 on 22-07-2013 on total income of Rs. 37,29l920/-. Along with demand notice in order to providing opportunity for filing reply by 05-03-2013 show cause notice u/s 271(1)(b) was sent which was refused to receive assessee. postman has returned registered documents with remark refused . Finally, Inspector of this was also deputed to get served assessment order and penalty show cause notices appended therewith. Inspector has succeeded to serve upon assessee himself on 30-10-2013 but till date no reply is received against issued show cause notices. From above it is clear that neither assessee want to cooperate with Department or not have availed opportunity of being heard. Therefore, penalty of Rs. 30,000/- for three defaults on account of non-compliance of 3 ITA No. 663/JP/2016 Shri Abdul Sami vs. ITO, 7 (3), Jaipur . notice u/s 271(1)(b) of I.T. Act, 1961 on 14-05-2013, 14-06- 2013 and 05-07-2013 has imposed under section 271(1)(b) of I.T. Act, 1961 after getting approval of Addl. CIT, Range- 7, Jaipur. In remand report submitted by AO has submitted that order u/s 147/144 alongwith demand notice and penalty notices u/s 271(1)(B) and 271(1)(c) is duly served upon assessee by Inspector. show cause notices u/s 271(1)(b) were also properly served on assessee before passing penalty order u/s 271(1)(b) but no compliance has bee made by assessee in attending office or filing any written submission in this regard. 4.2 . 4.3 I have carefully considered submission of ld. AR of appellant regarding change of address of assessee and it is found that assessee has neither changed his address in PAN card nor intimated Department for change of address according to AO. In quantum appeal for this year regarding non-service of notices due to change of address, it is held by CIT (A)-III, Jaipur in his order dated 24-12-2014 for this year that in some of notices while serving same notice server also obtained mobile number of person served upon. In these circumstances when service of notice is made by notice server it is not expected that notice server will ask for ID Proof of receiver. As regards various case laws relied upon by appellant, same are found to be of distinguishable nature with facts of appellant s case inasmuch as in appellant case validity of earlier address is not disputed. Keeping in view these facts prima facie there was no irregularity or illegality in penalty levied u/s 271(1)(b). action of AO is confirmed. AO was correct in imposition of penalty of Rs. 30,000/- for 3 defaults as assessee has not cooperated with Department in finalizing proceedings keeping in 4 ITA No. 663/JP/2016 Shri Abdul Sami vs. ITO, 7 (3), Jaipur . view fact that show cause notices u/s 271(1)(B) were properly served upon assessee before passing penalty order. ground is dismissed. 3.2 During course of hearing, ld. AR of assessee prayed for deletion of penalty of Rs. 30,000/- confirmed by ld. CIT(A) u/s 271(1)(b) of Act and to this effect assessee has filed written submission which has been taken into consideration for adjudication of appeal of assessee. 3.3 ld. DR relied on orders of authorities below. 3.4 I have heard rival contentions and perused materials available on record. pertinent issue in this appeal is that assessee has not responded to notices sent by AO to address of assessee i.e. Shri Abdul Sami S/o Shri Abdul Rahim, 67, Ward No.8, Handipura, Amer, Jaipur for which AO vide his order dated 27-11- 2013 imposed penalty of Rs. 30,000/- as per details mentioned as under:- S.N. Notices Date of Date of Remarks Amount of issuance hearing penalty (Rs.) 1. Notice u/s 142(1) 29-04-2013 14-05-2013 Non complied Rs. 10,000/- 2. Notice u/s 142(1) 28-05-2013 14-06-2013 Non complied Rs. 10,000/- 3. Notice u/s 142(1) 25-06-2013 05-07-2013 Non complied Rs. 10,000/- Total Rs. 30,000/- 5 ITA No. 663/JP/2016 Shri Abdul Sami vs. ITO, 7 (3), Jaipur . same has been confirmed by ld. CIT(A). It emerges from records that assessee had been living at 1842, Mehron Ki Nadi, Opp. Mehron Ka Bagh, Ramganj Bazar, Jaipur since 2011. assessee has filed his affidavit notorized by Notary dated 8-11-2014 before CIT-III , Jaipur. assessee has also filed affidavit of his mother Smt. Rehani Begum W/o late Shri Abdul Rahim who confirmed that she had been living with family at 1842, Mehron Ki Nadi, Opp. Mehron Ka Bagh, Ramganj Bazar, Jaipur since 2011 after death of her husband. It is also noticed from order dated 13-03-2013 of ITO Ward- 7(3), Jaipur who had sent reasons to belief for reopening u/s 147 of I.T. Act, 1961 at address of assessee i.e. Shri Abdul Sami, H.No. 1842, Naheron Ki Nadi, Chokdi Ramchandra Ji Ki, Ram Ganj Bazar, Jaipur. Hence taking into consideration all facts and records available before Bench, it is observed that notices were not served upon assessee at his correct residential address and in such situation penalty confirmed by ld. CIT(A) amounting to Rs.30,000/- u/s 271(1)(b) is directed to be deleted. Thus Ground No. 2 of assessee is allowed. 6 ITA No. 663/JP/2016 Shri Abdul Sami vs. ITO, 7 (3), Jaipur . 4.0 In result, appeal of assessee is partly allowed. Order pronounced in open court on 19 /10/2016 Sd/- (Bhagchand) Accountant Member Jaipur Dated:- 19 /10/ 2016 Copy of order forwarded to: 1. Appellant- Shri Abdul Sami, Jaipur 2. Respondent- ITO, Ward- 7 (3), Jaipur 3. CIT(A). 4. CIT, 5. DR, ITAT, Jaipur 6. Guard File (ITA No. 663/JP/2016) By order, Assistant. Registrar Abdul Sami v. ITO, Ward- 7(3), Jaipur