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Income Tax Appellate Tribunal, DELHI BENCH: ‘G’ NEW DELHI
Before: SHRI R. K. PANDAMS. SUCHITRA KAMBLE
O R D E R PER SUCHITRA KAMBLE, JM :
This appeal is filed by the assessee against the order dated 22.02.2019 passed by CIT (Appeals)-2, New Delhi, for Assessment Year 2009-10.
The grounds of appeal
are as under:-
1. On the facts and circumstances of the case, the order passed by the learned CIT (A) is bad both in the eyes of law and on facts.
2. The learned CIT (A) did not consider the facts and circumstances of the case that notice u/s 148 was never served upon the assessee by any means. In the absence of such service of notice, order passed by the A.O.is bad and fatal in the law and when the assessment order itself void, no penalty can be levied against the assessee.
3. On the facts and circumstances of the case the learned AO has alleged that show cause notice was issued to the assessee but he failed to show/prove the proper service of such notice on the assessee and in the absence of service of such show cause notice the learned CIT (A) failed to appreciate the fact that no opportunity of being heard was provided to the assessee.
4. That the learned CIT (A) was totally wrong in making allegation against the assessee that “There is no information on pendency of quantum appeal in Tribunal”. The assessee had send an email to CIT(A) dated 24.01.2019 before the penalty order was passed informing that the assessee had already filed quantum appeal before Honorable ITAT and keeping the penalty proceedings in abeyance. Copy of email send is enclosed herewith.
5. On the facts and circumstances of the case the penalty imposed is illegal and void under the law wherein the learned CIT (A) failed to mention what the material information was misstated or concealed.
6. The appellant craves to add, amend or alter any or all of the grounds of appeal
. “
3. The assessee filed return of income on 30.10.2010 declaring Nil income. The case was reopened u/s 147 of the Income Tax Act, 1961. The Assessment order was passed u/s 147 r.w.s. 144 of the act and assessed the income of the assessee at Rs. 85,00,000/-. Simultaneously, the penalty u/s 271(1)(c) was issued and the Assessing Officer passed penalty order dated 29.06.2017.
Being aggrieved by the penalty order, the assessee filed appeal before the CIT (Appeals). The CIT (A) dismissed the appeal of the assessee.
The Ld. Authorized Representative submitted that the CIT (Appeals) has not given an appropriate opportunity of hearing to the assessee to represent his case.
The Ld. Departmental Representative relied upon the penalty order and the order of the CIT (Appeals).
We have heard both the parties and perused all the material available on record. It is pertinent to note that the CIT (Appeals) has not given any categorical finding on merits of the case and also did not give sufficient opportunity of hearing to the assessee. Therefore, the CIT (Appeals) was not right in dismissing the appeal of the assessee without giving proper opportunity of hearing. Hence, we are remanding back the entire issue to the file of the CIT (Appeals) to be decided on merits. Needless to say, the assessee be given an opportunity of hearing by following the principles of natural justice. We further direct the assessee to co-operate the revenue authorities for just and proper disposal by remaining present on the hearing dates and submit the relevant documents, otherwise, the revenue is at liberty to dismiss the appeals of the assessee ex-parte on merit. The appeal of the assessee is partly allowed, for statistical purpose.
In result, appeal of the assessee is partly allowed, for statistical purpose.
Order pronounced in the Open Court on this 25th Day of November, 2020