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Income Tax Appellate Tribunal, DELHI BENCH: ‘F+SMC’ NEW DELHI
Before: SH. R. K. PANDA & MS SUCHITRA KAMBLE
PER SUCHITRA KAMBLE, JM
This appeal is filed by the assessee against the order dated 31.08.2018 passed by the Commissioner of Income Tax [Appeals]-I, New Delhi for Assessment Year 2009-10.
The Grounds of appeal
are as under:-
1. Under the facts and circumstances of the case, the Ld. First appellate authority has grossly erred in dismissing the appeal on the ground that necessary evidence regarding payment of the statutory fee for the admission of appeal was not provided by the assessee which is against the facts, unwarranted and bad at law.
2. Under the facts and circumstances of the case, the penalty of Rs.2,87,000/- u/s 271(1)(c) of the Act levied on concealed income is unwarranted and bad at law as the ld. Assessing authority has not recorded any satisfaction in his assessment order to the effect that the appellant has concealed its income.
3. Under the facts and circumstances of the case, the penalty order passed by the ld. Assessing Authority u/s 271(1)(c) of the Act and upheld by ld. First Appellate Authority is invalid and bad at law as from the notice issued u/s 274 r.w.s 271 of the Act, it is not discernible as to whether penalty proceedings were initiated for concealment of income or furnishing inaccurate particulars thereof and therefore, impugned orders passed u/s 271(1)(c) of the Act deserves to be quashed.
Under the facts and circumstances of the case, the ld AO and the first appellate authority has passed the orders under section 271(1)(c) of the Act without giving a reasonable opportunity to the assessee as all the noties were sent to the interest address.
Under the facts and circumstances of the case, the penalty levied by the ld Assessing Authority is against the fact, injudicious and bad at law as the assessee has neither concealed particulars of the case nor furnished the accurate particulars.
6. The appellant prays for leave to add, amend, alter or withdraw any grounds of appeal.”
3. The assessee during part of the year was employed with an IT solutions company and was earning salary on monthly basis. Besides this the Assessee also has some interest income from bank. The assessment was completed 05.12.2016 on total income of Rs. 11,59,000/- under Section 144 of the Income Tax Act, 1961. The only addition was made on account of unexplained investment in purchase of property including stamp duty for Rs. 23,18,000/-. Penalty proceeding for concealment of income under Section 271(1)(c) of the Income Tax Act, 1961 were initiated on 05.12.2016 for the addition of Rs. 19,48,000/-. The Penalty order was passed ex-parte as the assessee has not filed any reply nor appeared before the Assessing Officer. Thus, an order of penalty dated 06.06.2017 was passed by the Assessing Officer u/s 271(1)(c) of I.T. Act, 1961 imposing a penalty of Rs. 2,87,000/- for not complying with the requirements of law.
4. Being aggrieved by the penalty order, the assessee filed online appeal before the CIT(A). However, only Form 35 is available on the website of the Department which was downloaded by the office and placed on record. As the assessee did not furnish the necessary evidence regarding the payment of the statutory fee for admission of its appeal, the CIT(A) dismissed the appeal filed by the assessee.
5. The Ld. AR submitted that the CIT(A) at no point of time, pointed to the assessee that there is technical objection to admit the appeal such as statutory fee is not paid. Thus, the Ld. AR submitted that the matter may be remanded back to the file of the CIT(A) and the issue contested before the CIT(A) be decided on merit after giving hearing to the assessee. The Ld. AR further submitted that the quantum has been decided in favour of the assessee by the Tribunal vide order dated 16.08.2019 in A.Y. 2009-10).
The Ld. DR submitted that the Assessee was given ample opportunity, but the same was not availed by the Assessee before the Assessing Officer as well as the CIT(A). Thus, the Ld. DR submitted that the appeal of the assessee be dismissed.
We have heard both the parties and perused the material available on record. From the perusal of the Penalty order as well as the order of the CIT(A), we find ample opportunity was not given to the assessee to contest the matter/issues before the Revenue authorities. The CIT(A) also did not decide the issues on merit but rather only harped that the statutory fee was not paid and hence dismissed the appeal. Since the quantum is deleted by the Assessing Officer after the matter was remanded back to the Assessing Officer by the Tribunal as stated by the Ld. AR, therefore, it will be appropriate to remand back this matter to the file of the CIT(A) for adjudicating the case on merit. Needless to say the assessee be given opportunity of hearing by following principles of natural justice. The appeal of the assessee is allowed for statistical purpose.
In result, appeal of the assessee is allowed for statistical purpose.
Order pronounced in the Open Court on 30th day of January, 2020.
Sd/- Sd/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: /01/2020 Priti Yadav, Sr. PS * Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT
ASSISTANT REGISTRAR ITAT NEW DELHI
Date of dictation 29.01.2020 Date on which the typed draft is placed before the 29.01.2020 dictating Member
Date on which the typed draft is placed before the .01.2020 Other Member
Date on which the approved draft comes to the Sr. .01.2020 PS/PS
Date on which the fair order is placed before the .01.2020 Dictating Member for pronouncement
Date on which the fair order comes back to the Sr. 30 .01.2020 PS/PS Date on which the final order is uploaded on the 30 .01.2020 website of ITAT Date on which the file goes to the Bench Clerk 30 .01.2020 Date on which the file goes to the Head Clerk