IN INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C , MUMBAI BEFORE SHRI S. RIFAUR RAHMAN (AM) AND SHRI RAM LAL NEGI (JM) ITA No. 2770/MUM/2017 Assessment Year: 2010-11 Pramod Ratilal Shah, CIT (A) 36, G-1, Garodia Nagar, 707B, C-10, Pratyaksha Kar Ghatkopar (E), Bhavan, B.K.C., Mumbai Vs. Mumbai -54 PAN: AACPS0090A (Appellant) (Respondent) Assessee by None Revenue by Shri Abdul Hakim M. (DR) Date of Hearing: 18/09/2019 Date of Pronouncement: 30/09/2019 ORDER PER RAM LAL NEGI, JM This appeal has been filed by assessee against order dated 24.01.2017 passed by Commissioner of Income Tax (Appeals)-3 (for short CIT(A), Mumbai, for assessment year 2010-11, whereby Ld. CIT(A) has dismissed appeal filed by assessee against penalty order passed u/s 271 (1) (b) & 271 (F) of Income Tax Act, 1961 (for short Act ). 2. In present case, AO passed assessment order u/s 144 r.w.s. 147 of Act determining total income of assessee at Rs. 10,45,000/- as assessee had not filed return of income for said assessment year. assessee failed to comply with notices u/s142 (1) and 143 (2) of Act. assessee further failed to attend or offer any explanation in response to notice u/s 271(F) of Act. Accordingly, AO imposed penalty of Rs. 10,000/- u/s 271 (b) and Rs. 5,000/- u/s 271 (F) of Act. In first appeal, 2 ITA No. 2770/ MUM/2017 Assessment Year: 2010-11 Ld. CIT (A) dismissed appeal filed by assessee, Against findings of Ld. CIT(A) assessee is in appeal before Tribunal. 3. assessee has challenged impugned order passed by Ld. CIT (A) on following effective grounds:- 1. On facts and circumstances of case and in law, learned Assessing Officer erred on various counts, in levying penalty. 2. learned Assessing Officer violated principal of natural justice by not giving proper opportunity of being heard to your appellant. 4. This appeal was fixed for final hearing on 18.09.2019. However, on said date, when case was called out for hearing, none appeared on behalf of assessee. From record, we observed that assessee sought adjournment on 16.08.2018 and thereafter he did not appear on 2/3 dates when appeal was fixed for hearing. Even, assessee did not move any application for adjournment. last notice sent on 03.04.2019 has received back un-served with remarks left . Hence, we decided to dispose of appeal on basis of material on record after hearing Departmental Representative (DR), holding that no purpose would be served in case appeal is adjourn and fresh notice is issued. We accordingly allowed Ld. DR to argue appeal on behalf of revenue. 5. Before us, Ld. DR submitted that since assessee failed to comply with notice under section 142 (1) and 143 (2) of Act, and further failed to file return of income as required under section 139(1) of Act, Ld. CIT (A) has rightly confirmed penalty of Rs. 10,000/- u/s 271 (b) and penalty of Rs. 5,000/- u/s 271 (F) of Act levied by AO. 6. We have perused material on record in light of submissions made by Ld. DR. We notice that assessee had not filed return of income for AY 2010-11. Since, it came to notice of AO that appellant had made huge turnover in commodities, contract amounting to Rs. 7,86,87,185/- and deposited cash amounting to Rs. 2,06,969/- in Saving 3 ITA No. 2770/ MUM/2017 Assessment Year: 2010-11 Bank account, AO completed assessment u/s 147 of Act determining total income at Rs. 10,45,000/-. We further notice that in response to notice u/s 148 of Act, assessee neither filed return of income nor filed any reply. assessee further failed to appear or offer any explanation in response to notice u/s 271(F) of Act. Ld. CIT(A) has dismissed appeal of assessee holding as under:- 5.1 In Ground No. 1 and 2, appellant has challenged levying of penalty u/s 271F of Act by AO. appellant has not filed return of income for assessment year 2010-11. Subsequently, on verification it is noticed by AO that appellant has made huge turnover in commodities contract amounting to Rs. 7,86,87,185/- and deposited cash of Rs. 2,06,969/- in savings bank account and hence, case was reopened u/s 147 of Income Tax Act, 1961. assessment was completed u/s 144 r.w.s. 147 of I.T. Act on 19.03.2015 by assessing total income at Rs. 10,45,000/-. appellant neither filed return of income u/s 139 of Act nor filed return of income in response to notice u/s 148 of Act. As appellant failed to furnish return of income of relevant period, penalty notice u/s 271F of Act dated 19.03.2015 was issued to appellant. In response to above penalty notice issued, appellant neither attended nor offered any explanation. AO proceeded to levy penalty of Rs. 5,000/- u/s 271F of Act. 5.2 Per Contra: appellant has submitted that he is senior citizen and he was treated bypass surgery during period when he received notices from assessing officer and due to lack of knowledge letters received from department were kept aside by family members and hence they were not able to comply to notices received by them and when it came to notice of appellant, he approached assessing officer who informed appellant that orders had been passed under section 144 of Income Tax Act, 1961. appellant pleads to drop penalties levied u/s 271 (1)(b) of Act as there was no malafide intention of appellant not to provide details to department. Secondly, his income during said assessment year was not crossing taxable limit, appellant has incurred loss in commodities & 4 ITA No. 2770/ MUM/2017 Assessment Year: 2010-11 derivatives transactions which he has done during relevant years which is also stated in orders as issued by Assessing Officer. Hence, as there was o taxable income during relevant year appellant did not file his return of income. He pleads to drop penalty u/s 271F of Act as income was below taxable limits which is also confirmed by assessing officer while passing order u/s 144 of Act. 5.3 matter has been considered: I have carefully considered impugned penalty order and one page written submission of appellant. Appellant has failed to substantiate with documentary evidence that due to his personal health problems/issues he could attend before AO. It is also fact that subsequently assessment order was also passed u/s 144 of Act. In view of this, appellant s contention is rejected. Grounds of Appeal are dismissed. 7. Ld. CIT (A) has dismissed appeal of assessee holding that assessee has failed to substantiate its contention that he could not attend proceedings before AO due to illness. We do not find any evidence on record to controvert findings of Ld. CIT(A). Hence, we do not find any reason to interfere with order of Ld. CIT (A). We, therefore, uphold order passed by Ld.CIT (A) dismissed assessee s appeal. In result, appeal filed by assessee for assessment year 2010-11 is dismissed. Order pronounced in open court on 30th September, 2019. Sd/- Sd/- (S. RIFAUR RAHMAN) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated: 30/09/2019 Alindra, PS /Copy of Order forwarded to 1. Appellant 2. Respondent. 5 ITA No. 2770/ MUM/2017 Assessment Year: 2010-11 3. CIT(A)- 4. CIT 5 DR, ITAT, Mumbai 6. Guard file. / BY ORDER, (Dy./Asstt. Registrar) , / ITAT, Mumbai Pramod Ratilal Shah v. CIT (A)36, Mumbai