M/S. ATHENA ENERGY VENTURE PVT. LTD.,NEW DELHI vs. DCIT, NEW DELHI

This appeal filed by the assessee is directed against the order dated 21.12.2015 of the CIT(A)-1, New Delhi relating to A.Y.2008-09.

There is a delay of 150 days in filing of the appeal by the assessee for which the assessee has filed a condonation petition explaining the reason for such delay. After hearing both the sides and after going through the contents of the condonation application, the delay in filing of the appeal by the assessee is condoned and the appeal is being admitted for hearing. 3. Although a number of grounds have been raised by the assessee, these all relate to the exparte order of the CIT(A) in confirming the penalty of Rs.3,39,900/- levied by the AO u/s. 271 (1) (c) of the IT Act. 4. Facts of the case, in brief, are that the assessee filed its return of income on 30.11.2008 declaring nil income. The AO completed the assessment u/s.143 (3) on 16.11.2010 determining total loss at Rs.68,75,170/- wherein apart from other additions he made addition of Rs. 10 lacs being the stamp duty paid to the ROC for increase in authorized capital since assessee, in the computation of income, had disallowed suo-moto of Rs.24,85,300/- as against Rs.34,85,300/-. While doing so the AO relied on the decision of Hon’ble Supreme Court in the case of Brooke Bond India Ltd. Vs. CIT 225 ITR 798. The AO thereafter initiated penalty proceedings u/s. 271 (1) (c) of the IT Act, 1961 and levied penalty of Rs.3,39,900/- being 100% of tax sought to be evaded. 5. Since none appeared before the CIT(A) despite number of opportunities granted, the Ld. CIT(A), in the exparte order passed by him, sustained the penalty so levied by the AO. 6. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal. 7. We have heard the rival arguments made by both the sides and perused the orders of the authorities below. It is an admitted fact that despite number of opportunities granted, the assessee Page | 2 did not appear before the CIT(A) for which the Ld. CIT(A) passed the exparte order and thereafter sustained the penalty levied by the AO u/s. 271 (1) (c) of the IT Act, 1961. It is the submission of the ld. Counsel for the assessee that in the interest of justice the assessee should be given one final opportunity to represent its case before the CIT(A). Considering the totality of the facts of the case and in the interest of justice we deem it proper to restore the issue to the file of the CIT(A) with a direction to grant one final opportunity to the assessee to substantiate its case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the CIT(A) without seeking any adjournment under any pretext failing which the Ld. CIT(A) is at liberty to decide the issue as per fact and law. The grounds raised