R.MADANAGOPAL,COIMBATORE vs. ITO, COIMBATORE

आदेश /O R D E R

PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:

2 R. Madanagopal & 1099/Chny/2017 AY: 2011-12 2. Originally, both the appeals filed by the assessee are directed against the different orders of the ld. Commissioner of Income Tax (Appeals) 2, Coimbatore, dated 30.03.2017, relevant to the assessment year 2011-12 passed against quantum addition as well as levy of penalty under section 271(1)(c) of the Income-tax Act, 1961 [“Act” in short]. In the appeal against quantum addition, besides challenging confirmation of various additions, the assessee also challenged that the ld. CIT(A) has erred in denying opportunity to the AR of the assessee to represent assessee’s case. The assessee also challenged in appeal, the levy of penalty under section 271(1)(c) of the Act against the quantum addition. While disposing of the MA filed by the assessee, it was brought to the attention of the bench that the Ld. Counsel of the assessee represented the matter with regard to the limited opportunity provided before the first appellate authority. In the MAs, a prayer was made to grant one more opportunity to the assessee by remitting both the matters back to the file of the first appellate authority. No other arguments were made at the time of hearing and the Ld. SR. DR also argued only on the preliminary issue.

3. The observations made and findings given in the order of the MAs (supra) is reproduced as under: “2. Drawing attention to the petitions, Ld. AR submitted that appeals were against confirmation of quantum additions as well as against imposition of penalty. The Ld. AR further submitted that the only 3 R. Madanagopal & 1099/Chny/2017 AY: 2011-12 limited argument advanced at the time of hearing was with regard to the limited opportunity to re-present the case before the first appellate authority. A prayer was made to grant one more opportunity to the assessee by remanding both the matters back to the file of learned first appellate authority. No other arguments were made at the time of hearing and Ld. DR also argued only on the preliminary issue. However, the Bench dealt the issue on merits and concluded in para-7 of the order that there was no evidence adduced for claiming or establishing the source for cash deposits. Accordingly, the Bench erroneously dismissed the appeals without affording opportunity to both sides in presenting their case on merits.

4. Before us, Ld. Counsel of the assessee reiterated the prayer, wherein, he requested for granting of one more opportunity to the assessee by remitting matter back to the file of the Assessing Officer. Ld. Counsel prayed for sending the matter to the file of the Ld. AO instead of the Ld. CIT(A) where he will produce the books of account and other records to get the transactions verified. Considering the facts on record and the assurance given by the Ld Counsel of the assessee to produce books of accounts, invoice/vouchers and other records to substantiate the claim made by the assessee as he was prevented from producing the same, we find it proper to remit the matter back to the file of the Ld. AO for fresh adjudication of the 4 R. Madanagopal & 1099/Chny/2017 AY: 2011-12 matter by taking into consideration the submissions placed on record by the assessee. We also direct the assessee to comply with all the notices issued by the Assessing Officer in this respect for the meritorious and expedience disposal of the matter without seeking adjournments except under certain specific and unavoidable circumstances. Needless to say, the assessee shall be given reasonable opportunity of being heard and will be at liberty to make all the submissions along with documentary evidences to substantiate its claim. While remitting the matter back to the file of the Ld. AO, it is made clear that we are not expressing any views and observations in respect of the merits of the case so as to limit the assessment procedure before the Ld. AO. The observations herein made by us in remitting the matter back to the file of the ld. AO will not impair or injure the case of the Revenue nor will it cause any prejudice to the findings/explanations of the assessee. Accordingly, in terms of above, the appeal of the assessee is allowed for statistical purposes.

5. The other appeal of the assessee vide is in respect of penalty imposed u/s. 271(1)(c) of the Act by making the additions therein dealt in ITA No. 1099/Chny/2017. Since, the matter in has been set aside for fresh adjudication by the Ld. AO, the penalty which is consequent to the assessment which has been remitted back to the file of the ld. AO, the 5 R. Madanagopal & 1099/Chny/2017 AY: 2011-12 appeal relating to penalty so imposed becomes infructuous and accordingly, the appeal in is allowed. It is made clear that disposal of this penalty appeal will not have any bearing on the power of the Ld. AO to reinitiate and impose the penalty consequent to the outcome of denovo assessment based on decision given in ITA No. 1098/Chny/2017 (supra).

Order pronounced on 26th May, 2022 at Chennai.