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Income Tax Appellate Tribunal, JODHPUR BENCH, JODHPUR
Before: SHRI N.K.SAINI & SHRI N.K. CHOUDHRY
Per N.K. SAINI, V.P. :
These appeals by the assessees are directed against the separate orders each dated 15.11.2018 of the CIT(A)-2, Udaipur.
Since the issue involved is common in these appeals which were heard together, so these are being disposed off by this common order for the sake of convenience and brevity.
The only grievance of the assessees in these appeals relate to the sustenance of penalty levied by the Assessing Officer u/s 271 (1) (c) of the Income Tax Act, 1961 [in short' the Act'].
The facts of the case in brief are that a search and seizure operation u/s 132 of the Act was carried out at the residential premises of the assessee and the family members on 15.12.2009 and 16.12.2009. During the course of search, certain incriminating documents / loose appears / books of account and various assets were found and seized. Thereafter, notices u/s 153A of the Act were issued and in response the assessees furnished the returns of income including the surrendered income. The Assessing Officer, however, made various additions in the income declared by the assessees but the additions made by the Assessing Officer were directed to be deleted by the ITAT vide order dt 26.11.2013. The Assessing Officer noted that there was difference in the total income declared by the assessee u/s 139(1) of the Act and income
declared u/s 153A of the Act. He considered the difference as concealed
income of the assessee and levied penalty u/s 271 (1) (c) of the Act.
Being aggrieved, the assessees carried the matter to the Ld. CIT(A)
who passed the impugned orders ex-parte by stating that the notices were
issued to the assessees but none attended on the dates fixed for hearing. The
Ld. CIT(A) sustained the penalty levied by the Assessing Officer. Now the
assessees are in appeals.
The Ld. counsel for the assessees submitted that the notices issued by
the CIT(A) were not served upon the assessees and no opportunity for hearing
was given, therefore, Ld. CIT(A) was not justified in sustaining the penalty
levied by the Assessing Officer u/s 271(1) (c) of the Act..
In his rival submissions, the Ld. Sr. DR supported the orders of the
authorities below.
We have considered the submissions of both the parties and perused the
material available on record. In the present case, it is noticed that the Ld.
CIT(A) in para 3 of the impugned orders has mentioned that various notices
were issued to the assessees by post, in response to which, the assessees
either failed to appear or sought the adjournments. It is also mentioned that
the last notice was issued on 2.11.2018 for hearing on 14.11.2018 but none
attended. In the present case it is not clear as to whether the notices issued
by the Ld. CIT(A) were served upon by the assessees. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. We, therefore, by keeping in view the principles of natural justice, deem it appropriate to set aside these cases back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessees.
In the result, the appeals of the assessees are allowed for statistical purposes.
(Order Pronounced in the Court on 01.05.2019)
Sd/- Sd/- (N.K. CHOUDHRY) (N.K. SAINI) Judicial Member Vice President Dated : 01.05.2019 “आर.के.” आदेशक���त�ल�पअ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकरआयु�त/ CIT 4. आयकरआयु�त (अपील)/ The CIT(A) 5. �वभागीय��त�न�ध, आयकरअपील यआ�धकरण, च#डीगढ़/ DR, ITAT, Jodhpur 6. गाड&फाईल/ Guard File
आदेशानुसार/ By order सहायकपंजीकार/ Assistant Registrar