SHRI MURLIDHAR SHARMA,JODHPUR vs. DCIT, CENTRAL CIRCLE-2, JODHPUR

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ITA 587/JODH/2018Status: DisposedITAT Jodhpur01 May 2019AY 2013-145 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal noted that it was unclear if notices from the CIT(A) were served and that principles of natural justice require an opportunity to be heard. Therefore, the cases were set aside to the CIT(A) for fresh adjudication.

What were the facts?

A search operation led to the issuance of notices under Section 153A. The Assessing Officer levied penalty under Section 271(1)(c) for the difference between income declared under Section 139(1) and Section 153A. The CIT(A) sustained the penalty ex-parte.

What were the issues?

Whether the penalty under Section 271(1)(c) was validly sustained by the CIT(A) without proper service of notices and an opportunity of hearing to the assessees.

Which sections of the Income-tax Act were involved?

Section 271(1)(c),Section 153A,Section 139(1),Section 132

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, JODHPUR BENCH, JODHPUR

Before: SHRI N.K.SAINI & SHRI N.K. CHOUDHRY

For Respondent: DR Shri Amit Kothari, CA
Hearing: 01.05.2019

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.

2.

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.

3.

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'].

4.

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.

5.

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.

6.

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..

7.

In his rival submissions, the Ld. Sr. DR supported the orders of the

authorities below.

8.

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.

9.

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

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