DEVENDRA SHARAD KUMAR DAMLE,DELHI vs. JCIT, RANGE-61, NEW DELHI

ORDER PER O.P. KANT, AM:

This appeal by the assessee is directed against the order dated 10th November, 2017, passed by the learned Commissioner of Income Tax (Appeals)-20, New Delhi, [in short ‘the learned CIT(A)], for assessment year 2008-09, in relation to penalty under Section 271D of the Income-tax Act, 1961 (in short ‘the Act’). The grounds raised by the assessee are reproduced as under:

1. On the facts and circumstances of case and in law, the order passed by the Commissioner of Income Tax (Appeal) is bad in- law.

on merit.

4. On the facts and circumstances of the case and in law, the penalty order passed by the assessing officer was bad-in-law, without jurisdiction and barred by limitation and CIT(A) erred in not holding so.

5. On the facts and circumstances of the case and in law, the CIT(A) erred in confirming penalty of Rs.14,00,000/- imposed by the assessing officer u/s 271D of the Income Tax Act, 1961. The appellant craves leave to add one or more ground of appeal or to alter/modify the existing ground before or at the time of hearing of appeal. The aforesaid grounds of appeal are without prejudice to each other.

2. At the outset before us, the learned counsel for the assessee submitted that the appeal has been decided ex-parte without considering submissions of the assessee and, therefore, same may be restored back to the file of the learned CIT(A) for deciding afresh after considering the submissions and materials to be submitted by the assessee. He also submitted that in earlier assessment year 2007-08, the Tribunal in identical circumstances has restored the appeal of the assessee to the file of the learned CIT(A) for deciding afresh.

3. On the contrary, the learned DR objected and submitted that the assessee was provided enough opportunities, however, the assessee failed to make representation before the learned CIT(A). Therefore, the learned CIT(A) cannot be faulted for passing the order based on the information available before her.

4. We have heard the rival submissions of the parties and perused the relevant material on record. We find that in the Assessment Year 2007-08 also, the learned CIT(A) passed ex- parte order without the benefit of assessee’s submissions which has been restored back to the file of the learned CIT(A) by the Tribunal in ITA No. 7270/Del./2017, observing as under: “(B) The only issue in dispute in this appeal is regarding penalty of Rs. 14,00,000/- imposed u/s 271D of Income Tax Act. Vide order dated 29.09.2016 order u/s 271D of Income Tax Act (“IT Act” for short;) was passed by Joint Commissioner of Income Tax (“JCIT”, for short) laying penalty of Rs. 14,00,000/-; which was confirmed by Learned Commissioner of Income Tax (Appeals) [“Ld. CIT(A)”, for short] vide impugned order dated 10/11/2017. Aggrieved, this appeal before us has been filed by the assessee against aforesaid impugned appellate order dated 10/11/2017; which was passed by Ld. CIT(A) ex-parte without the benefit of assessee’s submissions. At the time of hearing before us, both sides submitted before us that the issue in dispute be set aside to the file of Ld. CIT(A) for fresh order as per law so that the assessee gets an opportunity to make submissions before Ld. CIT(A). (C) In view of the foregoing, and as both sides have agreed to this, we set aside the impugned order dated 10/11/2017 of Ld. CIT(A) and restore the issue in dispute to the file of the Ld. CIT(A) for fresh order as per law, after providing reasonable opportunity to the assessee. The assessee is directed to ensure steadfast compliances in proceedings before Ld. CIT(A) in accordance with law.”

5. Respectfully following the finding of the Tribunal (supra), the order of the learned CIT(A) is set aside and the appeal is restored back to the file of the learned CIT(A) for deciding afresh as, per law, after providing adequate opportunity of being heard to both of the parties.