U/s 271 (1) (b)

Tax queries 4142 views 2 replies

Dharmendra Jain

Mcom LLB

142 Points Joined June 2010

The department issued me a notice U/s 143 (2) which was technically time barred. thereafter issued 2 - 3 notices U/S 142 . I replied for every notices in writing by explaning that ur notice is illegal due to time barred of notice u/s 143 (2) but not attended personally any time . I also not replied for Notice u/s 143 (2) because that was not received by me within time. .

Now the assessing authority have issued me a memo for penalty proceeding U/S 271 (1) B . where as they have not mentioned any date of absence or missing in the said memo.

(1) Is the date of missing / absence or non compliance is necessary in the said memo .

(2) What reply can be given to the department

Replies (2)

gbalakrishnan

owner

1373 Points Joined January 2012

Mens Rea is essential ingredient to be proved against accused to convert him as having committed the crime. So first the onus on the AO to prove the mens rea that cannot be possible without audi alteram partem. when you issued a reply saying time barred the AO has to prove why not time barred and he did not mean it is time barred so far and yet he harps on the same penalty, if he persits move the high court for stay or appeal to CIT(Appeals), ensure you appoint a proper advocate preferably knowing law of crimes than some taxation man turned layer.

gbalakrishnan

owner

1373 Points Joined January 2012

this is not to insult taxation lawyer but problem is they least know law of crimes, as MBAs are supposed to know everything type are plenty that way clients are harassed. After all you need to reduce your stress but wrong kind of advocacy increases stress that is the point discussed. Nani Palkiwala a Literature Post graduate but he was a top taxation lawyer why he studied legal aspects of income tax, after all income tax people are neither good lawyers nor good professional tax specialists but quite many hold some LLB degress and hence they think they are top in law but they only complicate issues and courts find several times unnecessary cases are brought by Tax dept. ITAT seems to be good as Some High court and SC judgements appreciated ITAT judgements as there is a Judicial member with sound law practice either as an advocate or as a retd judge.

so care is needed.

After all revenue needs money and force revenue officers - AOs and tat way harassed officer makes several penalty orders.

Truth most of penalty orders emanate from AO's presumptions. If not tested under 'audi alterm partem' facts cannot be known please!