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Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI
Before: SHRI KULDIP SINGH & SHRI GAGAN GOYAL
O R D E R
Per : Kuldip Singh, Judicial Member:
The appellant, M/s. National Commodities Management Services Ltd. (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 28.04.2023 passed by the National Faceless Appeal Centre(NFAC) [Commissioner of Income Tax (Appeals), Delhi] (hereinafter referred to as CIT(A)] qua the assessment year 2014-15 on the grounds inter-alia that :- “1. On the facts and circumstances of the case and in law, Ld. CIT(A) erred in passing ex-parte order u/s 250 of the Act without giving 2 M/s. National Commodities Management Services Ltd.
opportunity of being heard to the appellant company and thereby not followed the principle of natural justice and therefore, the said order needs to be quashed.
On the facts and circumstances of the case and in law, the Ld. Assessing Officer (AO) erred in levying penalty of Rs. 20,93,636/- u/s 271(1)(c) of the Act on write back of provision for doubtful debts of Rs. 59,75,910/- and reasons assigned for doing so are wrong and contrary to facts and circumstances of the case, the provisions of Income Tax Act, 1961 and the Rules made thereunder.
On the facts and circumstances of the case and in law, the Id. AO erred in considering non filing of appeal against assessment order as acceptance of addition by appellant company and being the reason for levying penalty u/s 271(1)(c) of the Act which is wrong and contrary to provisions of the Act and Rules made thereunder.
4. On the facts and circumstances of the case and in law, the Id. AO has erred in initiating penalty proceedings u/s 271(1)(c) of the Act by mentioning both the limbs of furnishing inaccurate particulars of income and concealment of income in assessment order and without specifying the charge against the appellant company and not doing so is wrong and contrary to provisions of the Act and Rules made thereunder.
5. Without prejudice to above, the Id. AO erred in levying excess penalty u / s 271(1)(c) of the Act of Rs. 62.424 /- without appreciating the fact that minimum penalty leviable u/s 271(1)(c) of the Act would be Rs. 20 ,31,212/- The appellant company craves leave to add, amend, alter, and / or modify all or any of the above grounds of appeal, on or before the date of hearing.”
2. Briefly stated facts necessary for consideration and adjudication of the issues at hand are : on the basis of assessment framed under section 143(3) of the Income Tax Act, 1961 (for short ‘the Act’), whereby disallowance on account of deduction under section 35AD to the tune of Rs.59,75,910/- was made, initiated the penalty proceedings under section 271(1)(c) of the Act.
3. The assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has dismissed the appeal for want of 3 M/s. National Commodities Management Services Ltd.
prosecution by the assessee. Feeling aggrieved with the impugned order passed by the Ld. CIT(A) the assessee has come up before the Tribunal by way of filing present appeal.
We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto.
Bare perusal of the impugned order passed by the Ld. CIT(A) particularly para 4 goes to prove that despite issuance of three notices through electronic mode the assessee has failed to appear before the Ld. CIT(A) who has proceeded to dismiss the appeal for want of prosecution without entering into the merits of the case.
We are of the considered view that in view of the decision rendered by Hon’ble Bombay High Court in case of Commissioner of Income-tax (Central) Nagpur vs. Premkumar Arjundas Luthra (HUF) [2016] 69 taxmann.com 407 (Bombay) in case the assessee does not appear the Ld. CIT(A) is not empowered to dismiss the appeal ex-parte without deciding the merits of the appeal. Moreover, it is contended by the Ld. A.R. for the assessee that alleged notices issued by Ld. CIT(A) have never been received. To meet with the ends of justice and to decide the issue once for all adequate opportunity of being heard is required to be given to the assessee. So the impugned order passed by the Ld. CIT(A) is hereby set aside to be decided afresh after providing opportunity of being heard to the assessee. 4 M/s. National Commodities Management Services Ltd.
Resultantly, the appeal filed by the assessee is hereby allowed for statistical purposes. Order pronounced in the open court on 19.12.2023.