SANDEEP JAIN,JAIPUR vs. ITO, JAIPUR

PER VIJAY PAL RAO, J.M.

This appeal by the assessee is directed against the order dated 1st November, 2012 of ld. CIT (A)-1, Jaipur arising from penalty order under section 271(1)(c) of the IT Act for the assessment year 2006-07. The assessee has raised the following grounds of appeal :-

“ 1. The impugned penalty order u/s 271(1)(c) of the Act dated 15.03.2012 is bad in law and on facts of the case, for want of juri iction and various other reasons and hence, the same kindly be quashed.

The assessee filed his return of income on 31st October, 2006 declaring 2. income of Rs. 2,21,630/-. The AO completed the assessment under section 143(3)

of the IT Act on 30.12.2008 determining the total income of the assessee at Rs.

1,24,89,180/-. While completing the scrutiny assessment, the AO inter alia made

the additions of Rs. 45 lacs on account of unaccounted purchases and Rs. 2,30,658/-

on account of trading additions. The other additions made by the AO were deleted

by the ld. CIT (A) in quantum appeal. Subsequently, the AO initiated the penalty

proceedings under section 271(1)(c) of the Act in respect of these two additions

which attained finality. The AO levied the penalty of Rs. 16,06,921/- being 100% of tax sought to be evaded vide order dated 15th March, 2012. The assessee

challenged the action of the AO before the ld. CIT (A) but could not succeed.

at the time of hearing of the appeal and submitted that the assessee was not given

an appropriate opportunity of hearing and notices issued to the assessee by the AO

were not received as the assessee shifted to a new place.

grounds under his own signature even without filing any application seeking leave of the Tribunal. Thus it appears that the additional grounds were filed by the ld. A/R

only as a device to avoid the hearing as the fresh plea at this stage raised in the additional grounds cannot be entertained and decided without giving an opportunity

to the department to counter the additional grounds sought to be filed by the assessee. Hence, in the facts and circumstances of the case when the additional

grounds are neither verified nor signed by the assessee, we decline to entertain the additional grounds` filed by the ld. A/R.

and considered the relevant material on record. At the outset, we note that the impugned order was passed by the ld. CIT (A) ex parte when nobody appeared on behalf of the assessee. The ld. CIT (A) has painfully narrated the details of notices

issued to the assessee but were not responded on behalf of the assessee. The relevant observations of the ld. CIT (A) regarding notice issued to the assessee are at page 3 as under :- “ The case of the assessee was fixed for hearing on 15/06/2012. The notice was returned by the Postal Authorities on 28.05.2012. Another notice dated 10.09.2012 was issued fixing the hearing of the case on 28.09.2012 and was served on the Authorized Representative of the appellant Shri O.P. Vyas. However nobody attended. Another notice was issued dated 04.10.2012 fixing the hearing on 18.10.2012 and was forwarded to the concerned AO for service by the notice server. As per the report of the AO dated 15.10.2012 the notice was served to the appellant by the notice server on 11.10.2012. However, no compliance to the notice was made on 18.10.2012. Given the fact that in-spite of repeated opportunity the appellant did not furnish any submissions regarding the grounds of appeal filed nor was any representative made, it is held that the sufficient opportunity has not been availed of by the appellant because he has nothing to say in the matter. Therefore, the case is being decided on merit.”

The assessee now pleaded that due to shifting of place the notices issued by the AO

and ld. CIT (A) could not be served on the assessee. We note that neither the assessee furnished any current address to the AO or before the ld. CIT (Appeals) nor

it is given in the Memo of Appeal before us in Form No.

that the assessee is not serious about the proceedings either before the authorities

below or before us. However, having regard to the fact that the appeal was dismissed by the ld. CIT (Appeals) ex parte, we are of the view that in the interest of justice one more opportunity be given to the assessee to present his case subject to cost of Rs. 5,000/-. Accordingly, we set aside the matter to the record of the ld. CIT

(A) for granting one more opportunity to the assessee to present his case and then decide the same as per law. We make it clear that if assessee fails to appear before the ld. CIT (A), then the opportunity granted by us shall be vacated.

Order pronounced in the open court on 12/07/2018. ¼ HkkxpUn½ ¼ fot; iky jkWo ½ (BHAGCHAND) ( VIJAY PAL RAO ) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 12/07/2018. das/ आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant-Shri Sandeep Jain, Jaipur. 2. izR;FkhZ@ The Respondent-The ITO Ward 1(3), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File {ITA No. 42/JP/2013} vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत