JAYASHREE,CHENNAI vs. ACIT, NON CORPORATE RANGE-13, CHENNAI

This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [NFAC], Delhi dated 15.03.2023 relevant to the assessment year 2011-12 passed under section 271D of the Income Tax Act, 1961 [“Act” in short].

Brief facts of the case are that during the course of assessment proceedings, the ITO NCW 13(3) found that the assessee has recei ed loan in cash amounting to ₹.71 lakhs during the previous year relevant to the assessment year 2011-12 and informed the same vide letter dated 27.12.2018 to the Addl. CIT, Non-Corporate Range-13, Chennai. Accordingly, notice under section 274 r.w.s. 271D of the Act dated 18.01.2019 was issued and served on the assessee on 24.01.2019. After considering the submissions of the assessee, the Addl. CIT levied penalty of ₹.71,00,000/- under section 271D of the Act for acceptance of loan otherwise by way of an account payee cheque or account payee bank draft without reasonable cause in violation of the provisions of section 269SS of the Act.

On appeal, the ld. CIT(A) dismissed the appeal of the assessee for reason that there was no material on record to warrant interference in the penalty order passed by the Addl. CIT under section 271D of the Act.

On being aggrieved, the assessee is in appeal before the Tribunal against the exparte order of the ld. CIT(A). The ld. Counsel for the assessee has submitted that the ld. CIT(A) has failed to consider the petition to file additional evidence in terms of Rule 46A of Income Tax Rules, 1962 filed by the assessee on 10.03.2023, much before concluding the appellate order. The ld. Counsel for the assessee has prayed for one more opportunity of being heard to the assessee.

On the other hand, the ld. DR supported the order passed by the ld. CIT(A).

We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. Against the penalty of ₹.71,00,000/- levied under section 271D of the Act, the assessee filed an appeal before the ld. CIT(A). Despite notice of hearing issued, since the assessee could not file any documentary evidence in support of receipt of loan in cash amounting to ₹.71 lakhs or otherwise the ld. CIT(A) passed the exparte order by upholding the penalty levied under section 271D of the Act. On perusal of the appellate order, we find that the ld. CIT(A) has fixed the hearing initially on 28.04.2021 and issued notice on 08.03.2021. Another notice was issued on 30.01.2023. Since no information or any document was brought on record, another notice was issued on 01.03.2023 for furnishing written submissions, whereas, the assessee could not file any written submissions/document. However, in the grounds of appeal, the assessee has raised a ground that the ld. CIT(A) has failed to consider the petition to file additional evidence in terms of Rule 46A of Income Tax Rules, 1962 filed by the assessee on 10.03.2023, a copy of the acknowledgment for the same was also brought on record. Thus, in the interest of natural justice, we are of the considered opinion that the assessee shall be given one more opportunity of being heard and the ld. CIT(A) shall permit the assessee to file additional evidence under Rule 46A before the ld. CIT(A) to substantiate her claim for consideration. Thus, we set aside the appellate order and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh in accordance with law by allowing and considering the additional evidence as may be filed by the assessee.

In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 26th June, 2023 at Chennai.