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Income Tax Appellate Tribunal, AHMEDABAD “SMC” BENCH
Before: Shri Mahavir Prasad & Shri Amarjit Singh
आदेश/ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-
This assessee’s appeal for A.Y. 2013-14, arises from order of the CIT(A)- 5, Ahmedabad dated 12-09-2016, in proceedings under section 271(1)(b) of the Income Tax Act, 1961; in short “the Act”. 2. The assessee has raised following grounds of appeal:- “1. In law and in facts and circumstances of the Appellant's case, the learned Commissioner of Income-tax (Appeals) has grossly erred in points of law and on facts. 2. In law and in facts and circumstances of the Appellant's case, the learned Commissioner of Income-tax (Appeals) has grossly erred in confirming penalty levied u/s.271(1)(b) of Income-tax Act for Rs. 10,000/-.”
I.T.A No. 2724/Ahd/2016 A.Y. 2013-14 Page No 2 Ajitbhai Jeshinghbhai Shah HUF vs. ITO
The brief fact of the case is that during the course of assessment proceedings, the assessing officer has issued notice u/s. 143(2) dated 28th August, 2015 ,however, neither anybody has attended on the date of hearing nor any written submission was filed. Thereafter, assessing officer has issued show cause notice dated 24 Sep, 2015 to the assessee to explain why penalty u/s. 271(1)(b) should not be imposed for not making compliance with the above cited notice. However, the assessee has not responded to the show cause notice issued by the assessing officer. Consequently, the assessing officer has imposed a penalty of Rs. 10000/- u/s. 271(1)(b) of the act for failing to making compliance with the notice issued u/s. 143(2) of the act.
Aggrieved assessee filed appeal before the ld. CIT(A). The ld. CIT(A). has issued notices dated 12th July, 2016, 10th August, 2016 and 11th August, 2016 respectively,however, the assessee has not attended the appellate proceedings before the ld. CIT(A). Therefore, the ld. CIT(A) has sustained the penalty of Rs. 10000/- levied by the assessing officer u/s. 271(1)(b) of the act.
During the course of appellate proceedings before us, the ld. counsel contended that hearing fixed according to notice u/s. 143(2) of the act was not attended, however, subsequently, the assessee had attended the assessment proceedings and furnished the required detail before the assessing officer. He has also contended that there is no failure on the part of the assessee and the assessment was completed u/s 143(3) and not sec.144 of the act. He has also placed reliance on the judicial pronouncement in the case of M/s. Raj Enterprises in ITA No. 958/Ahd/2011 dated 04-03-2015 and M/s Kanak Products Pvt. Ltd. vide ITA no. 1810/Ahd/2012 dated 29-06-2016. On the other hand, ld. departmental representative supported the order of ld. CIT(A).
We have heard both the sides and perused the material available on record. We find that assessing officer has levied penalty of Rs. 10,000/- u/s.
I.T.A No. 2724/Ahd/2016 A.Y. 2013-14 Page No 3 Ajitbhai Jeshinghbhai Shah HUF vs. ITO
271(1)(b) of the act for not compliance with the notices issued u/s. 143(2) of the act during the course of assessment proceedings. Subsequently, the assessee has failed to attend the hearing during appellate proceedings before the ld. CIT(A).Therefore the penalty levied was sustained as ex-parte by the ld. CIT(A). After considering the submission filed before us, we are of the opinion that it will be appropriate to set aside this case to the file of ld. CIT(A) for deciding it on merit. Accordingly, the appeal is set aside to ld. CIT(A) to decide it afresh with direction to the assessee to make compliance to the appellate proceedings before the ld. CIT(A) without any failure. Therefore, the appeal of the assessee is allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purpose
Order pronounced in the open court on 21-06-2018
Sd/- Sd/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 21/06/2018 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, अहमदाबाद