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Income Tax Appellate Tribunal, “B” Bench, Mumbai
This appeal by the assessee is directed against the order of learned CIT(A) dated 28.11.2019 pertains to A.Y. 2012-13.
2. The grounds of appeal
read as under :- 1 NATURAL JUSTICE 1.1 The Learned Commissioner of Income-tax (Appeals)-58, Mumbai ["Ld. CIT (A)"] erred in passing the appellate order in breach of the principles of natural justice as much as: (i) Not proper, effective and fair opportunity was granted to the Appellant; (ii) The Appellant was prevented by bona fide reasons for not being able to represent before him. 1.2 It is submitted that, in the facts and the circumstances of the case, and in law, the order be held as bad in law. WITHOUT PREJUDICE TO THE ABOVE
2. CONDONATION OF DELAY 2.1 The Ld. CIT (A) erred in not admitting the appeal and not condoning the delay.
2.2 It is submitted that, in the facts and the circumstances of the case, and in law, no such action was called for.
WITHOUT FURTHER PREJUDICE TO THE ABOVE 3.1 The Ld. CIT (A) erred in confirming the penalty levied by the A.O. u/s. 271(1)(c) of the Income - tax Act, 1961 ["the Act"].
3.2 The Ld. CIT (A) failed to appreciate that the order passed by the A.O. and/or the penalty levied was bad and illegal as the necessary conditions for initiating the penalty proceedings and the completion thereof were not fulfilled.
3.3 It is submitted that in the facts and the circumstances of the case, and in law, no such penalty was leviable.
4.1 The Ld. CIT (A) erred in confirming the action of the A.O. in levying penalty of Rs. 6,79,800/- u/s. 271(1)(c) of the Act on the allegation of concealment of income by the Appellant.
4.2 It is submitted that in the facts and the circumstances of the case, and in law, even on merits, no such penalty was leviable.
3. In this case learned CIT(A) has dismissed the appeal by observing as under :-
“The appeal has been filed against order u/s.271(1)(c). Details are as above.
As per Form 35 the date of service of demand notice is 31.10.2015. The appeal is 22.08.2016. Thus there is a delay in filing appeal.
In form 35, the grounds for condonation of delay is stated as under; Assessee was having health issues due to which he has been relocated to native place for sometime. In the meantime order was received which was misplaced. It has come to the notice when Id.AO has attached his bank accounts. We pray your goodself to condone the delay in filing of appeal.
When posted for hearing on 29.10.2019 assessee sought adjournment for 2 weeks (beyond 18.11.2019). This is not signed by appellant. Accordingly, case was posted on 26.11.2019. On 26.11.2019 Shri Aziz Badami appeared and filed undated LOA favouring Rashida T. Kapasi. Hence no hearing took place. Accordingly I proceed on basis of facts in record.
The first issue is condonation of delay. The reason adduced is not substantiated with documentary evidence. On basis of general unsubstantiated reasons, delay, that too of nearly 266 days cannot be condoned. The address in Form 35 and that in order appealed against remain same showing that claimed relocation is not correct.
6. On account of reasons stated above, I decline to condone the delay in filing the appeal. Being so the appeal is not admitted.
The appeal is treated as dismissed.”
4. Against the above order the assessee is in appeal before us.
5. We have heard learned Departmental Representative and perused the records. Upon careful consideration we fail to understand why the cause attributed viz., assessee having health issue and being relocated to native place temporarily cannot be accepted. Nothing has been mentioned by learned CIT(A) that he even asked the assessee to further substantiate and the assessee did not comply. Moreover, learned CIT(A) has written that since assessee’s address remain the same in Form No. 35, the claim of relocation is not correct. We note that the claim of relocation was in the context of assessee having health issue and hence, for some time he was relocated to his native place. Learned CIT(A)’s order does not reflect proper application of mind. In our considered opinion on the facts and circumstances of the case the delay deserves to be condoned. We direct accordingly. Learned CIT(A) shall now consider the issue on merits and decide accordingly. Hence, the issue stands be remitted to his file.
In the result, assessee’s appeal stands allowed for statistical purposes.
Pronounced in the open court on 9.11.2021.