B.N. DEVELOPERS PRIVATE LIMITED,KENDRAPADA vs. ITO, KENDRAPADA WARD, KENDRAPADA

Shri K.K.Bal Shri K.K.Bal, AR appeared for the assessee and Shri S.C.Mohanty, ld , AR appeared for the assessee and Shri S.C.Mohanty, ld Sr DR appeared for the revenue. Sr DR appeared for the revenue.

It was submitted by It was submitted by ld AR that the Assessing Officer has levied ld AR that the Assessing Officer has levied penalty without striking off of the relevant clause penalty without striking off of the relevant clauses in the penalty notice. It in the penalty notice. It was the further submission that the notice alleged to have been issued by was the further submission that the notice alleged to have been issued by was the further submission that the notice alleged to have been issued by P a g e 1 | 3 the ld CIT(A) has not been received by the assessee. It was the submission that the penalty as levied by the AO and confirmed by the ld CIT(A) is liable to be deleted or alternatively the issue in this appeal may be restored to the file of the ld CIT(A) for fresh adjudication.

In reply, ld Sr DR submitted that the assessee has not appeared before the ld CIT(A) even though substantial opportunities have been granted. It was the submission that these are fresh arguments being placed by the ld AR and same cannot be considered.

We have considered the rival submissions. A perusal of the order of the ld CIT(A) shows that the ld CIT(A) has not adjudicated the issue of penalty on merits. Ld CIT(A) has dismissed the appeal of the assessee on the ground that the assessee has not appeared before him in the course of hearing. It is noticed that the ld CIT(A) has in para 4 of his order mentioned that four opportunities have been granted to the assessee by sending notice through registered e-mail but the assessee has submitted that he has not received any mail. It is possible that the notice sent in mail could have gone to the spam folder. This being so, considering the interest of justice, we are of the view that the issue in this appeal may be restored to the file of the ld CIT(A) for re-adjudication. Accordingly, we restore the issue in this appeal to the file of the ld CIT(A) for fresh adjudication after granting adequate opportunity of being heard to the assessee.

In the result, appeal of the assessee is partly allowed for statistical purposes.

Order dictated and pronounced in the open court on 10/01/2023. Sd/- sd/- (Arun Khodpia) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 10/01/2023 B.K.Parida, SPS (OS) Copy of the Order forwarded to : 1. The Appellant : B.N.Developers Pvt Ltd., At: Baniamal, PO: College Road, Tinimuhani, Kendrapara 2. The Respondent: ITO, Kendrapara Ward, Kendrapara 3. The CIT(A)-, NFAC, Delhi 4. Pr.CIT-, Cuttack 5. DR, ITAT, Cuttack 6. Guard file. //True Copy// By order