Loading judgment…
No AI summary yet for this case.
Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of ld. Commissioner of Income tax (Appeals)-3, [CIT(A)], Surat dated 10.01.2019 for assessment year (AY) 2011-12. The assessee has raised the following grounds of appeal:- (1) “ The Ld. CIT(A) grossly erred in confirming the confirming Penalty of Rs. 6,90,450/- u/s 271(1)(c) of the Act.” (2) The Ld. CIT(A) grossly erred in not providing reasonable opportunity of being
2. Brief facts of the case are that the assessee filed his return of income for AY 2011-12 on 15.09.2011 declaring income of Rs.5,45,342/- and revised return on ITA 96/SRT/2019 (AY 2011-12) Rameshchandra Rangildas Mehta 30.03.2012 declaring income of Rs. 7,44,070/-. The assessment was completed under section 143(3. The Assessing Officer while passing the assessment order made addition of commission income @ 10% and worked out of addition of Rs.1,20,00,210/-, and initiated penalty proceedings under section 271(1)(c). The assessee filed appeal against the estimated addition, wherein the assessee was restricted @ 2%, thereby granted relief of Rs. 97,47,110/-. The assessing officer after receipt of the order of first appellate order in quantum assessment, levied penalty on the restricted addition @ 100% of tax sought to be evaded in order dated 29.03.2017. On appeal before the Ld. CIT(A) the penalty was upheld. The Ld. CIT(A) upheld the penalty order in ex-parte proceedings. Further aggrieved the assessee filed appeal before the Tribunal.
3. We have heard the submission of Ld. Authorized Representative (AR) of the assessee and the Ld. Senior Departmental Representative (Sr. DR) for the Revenue and have gone through the orders of authorities below. The Ld. AR of the assessee submits that first appellate authority passed ex-parte order without giving fair and proper opportunity to the assessee. The hearing of appeal before ld CIT(A), was fixed on three occasions. On one occasions / date of hearing, the assessee sought adjournment. No further notice was received by the assessee. The ld CIT(A) passed the order without considering the merit of the case. The additions in the assessment were made on estimation basis and no penalty was ITA 96/SRT/2019 (AY 2011-12) Rameshchandra Rangildas Mehta leviable. The ld AR for the assessee submits that there was no default in appearance before ld CIT(A). The default in non-appearance on the last date was neither intentional nor deliberate but due to the facts that notice was not received. The Ld. AR of the assessee submits that the assessee has a good case on merit and is likely to succeed, if the assessee given one more opportunity to contest the case on merit. The Ld. AR for assessee submits that even this case can be disposed of by Tribunal, on merit, as the additions made by the assessing officer on account of commissions income was reduced substantially by ld CIT(A). Against the order of the ld CIT(A) the revenue filed appeal before Tribunal, the assessee filed Cross Objection therein. The appeal of the revenue and cross objection of assessee was dismissed by Tribunal. Further aggrieved the assessee filed appeal before Jurisdictional High Court, wherein the entire addition made in the assessment was deleted. The copies of all the orders are placed on record.
4. On the other hand, Ld. Senior Departmental Representative (Sr-DR) for the Revenue submits that assessee was given fair and sufficient opportunities of hearing. The assessee was seeking adjournment and finally the appeal was fixed on 13.12.2018 neither the assessee nor his representative attended the hearing nor filed any adjournment application. In the circumstances, the Ld. CIT(A) has no option except to decide the case on the basis of material available on record.
ITA 96/SRT/2019 (AY 2011-12) Rameshchandra Rangildas Mehta The assessee does not deserve any further leniency in restoring the case to the file of ld CIT(A).
We have considered the rival submission of both the parties and perused the record carefully. We find that date of hearing was fixed by Ld. CIT(A) on three occasions. On one occasion, the assessee filed adjournment applications and same was allowed. The appeal was finally fixed on 13.12.2018. The ld AR vehemently urged that no notice for hearing was on 13.12.2018 was received and the appeal of the assessee was dismissed in limine. In our view no reasonable and fair opportunity was granted to the assessee.
The Ld. CIT(A) dismissed the appeal without adjudicating the above on merit. We find that Ld. CIT(A) has not passed the order as per the mandate of section 250(6) of the Act. Section 250(6) mandates that order of Ld. CIT(A) must contain the point of determination, decision thereon and reasons of such decision. The Ld. CIT(A) dismissed the appeal of assessee without following the mandates of section 250(6) of the Act.
We find that the additions in the assessment order of commissions income was made at estimated addition @ 10% of commissions income, which was reduced @ 2% by ld CIT(A). The order of ld CIT(A) in quantum assessment was maintained by Tribunal, however, ultimately entire additions were deleted by Hon’ble High Court in Tax Appeal No. 1203 of 2018 dared 15.07.2019.