BANTI DEVI,KOTPUTLI vs. ITO WAR 5(1), JAIPUR

(Penalty appeal u/s 271(1)© “1. The action of the learned Commissioner of Income Tax (Appeal)(NFAC), Delhi in passing the order under section 250 of the Income Tax Act, 1961, against the assessee is unjust, arbitrary and deserved to be quashed.

2. That the ld. CIT in holding the order of Assessing Officer that the assessee did not comply with the notices served on various dates were abrasive and is totally wrong and his action in passing the order under section 147/144 of the Act without serving the notice under section 148 of the Act on the assessee is illegal, arbitrary, void-ab-initio and deserves to the quashed.

3. That the action of Ld. CIT(Appeal) by confirming the penalty Rs. 408796/- imposed by the AO without given proper opportunity to the assessee, where as the assessee request to keep abeyance the penalty till finalization of appeal.

4. Appellant craves leave to add, alter, delete or modify and/or withdraw grounds of appeal up to the date of hearing of the appeal.”

2.3. During the course of hearing, the ld. DR objected to assessee’s applications for condonation of delay and prayed that Court may decide the issue as deemed fit and proper in the interest of justice.

2.4 We have heard both the parties and perused the materials available on record. The Bench noted that the reasons advanced by assessee for condonation of delay of 06 & 11 days are sufficient to condone the delay. Thus, we concur with the submission of the assessee and condone the delay of 06 & 11 days in filing the appeals by the assessee in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee was prevented by sufficient cause.

& 1341/JPR/2024 Banti Devi vs. ITO 3.1 Apropos grounds of appeal of the assessee in it is noticed that the ld.CIT(A) has dismissed the appeal of the assessee by observing at 5.1 of his order as under:-

“5.1 I have carefully considered the facts and circumstances of the case and the submission of the appellant. The grounds of appeal delayed to the addition made by the AO u/s 69A of the Act on account of cash deposited in the bank account during the year under consideration to an extent of Rs. 18, 19,628/- Therefore, the decision made below takes into account all the grounds since they relate to only one issue. It is a matter of record that there was absolutely no compliance by the appellant during the impugned assessment proceedings. From the perusal of the assessment order that three notices were issued including show cause notice and the appellant did not reply to even one. Be that as it may, the appellant in their written submissions dated 31.01.2021 says that the appellant runs a retail shop of general items in a village and the gross receipts from the shop during the year under consideration were to the tune of Rs 15,40,000/- and the income calculated u/s 44AD of the Act comes to Rs. 1,54,000/-ie. 10% of the gross receipts which is below the maximum amount not chargeable to tax and therefore did not file the ITR for the relevant year. He further states that the cash amount so deposited in the bank account were out of cash withdrawals made from time to time. The appellant has submitted a summary of cash deposited and withdrawal from the bank along with a copy of the savings bank account for the relevant period. On perusal of the same, it is seen that there were multiple cash deposits and cash withdrawals without explaining the source of the deposits or the reason for the withdrawal so observed. No documents apart from the cash flow and the bank account have been filed despite affording many opportunities during the appellate proceedings. In view of the above, I find the impugned addition made by the AO in the assessment order dated 10.12.2018 correct and to that extent the order is upheld. In the result, the appeal is hereby dismissed.”

& 1341/JPR/2024 Banti Devi vs. ITO 5.2 During the course of hearing, the ld. AR of the assessee submitted that the assessee was ex-parte before the lower authorities. He further submitted that the assessee could not appear before the Income Tax Officer during the course of assessment proceedings and reason for non appearance was that no notice was received by the assessee at his residential address. But in fact no notice was received by the assessee at his correct address and this was the root of the ex-parte assessment made by the Assessing Officer. During the course of hearing, the ld. AR of the assessee has index of paper book containing1 to 50 pages in his support whose details are as under:-

9. Bank Statement 48-50 He further submitted that the assessee may be provided one more opportunity of being heard by the Department and the case of the assessee may kindly be set aside to the AO for afresh adjudication but by providing adequate opportunity of being heard to the assessee.

& 1341/JPR/2024 Banti Devi vs. ITO 5.3 On the other hand, the ld. DR supported the order of the ld.CIT(A) and submitted that the assessee was lethargic in pursuing her case in spite of affording various opportunities to the assessee.

5.4 We have heard both the parties and perused the materials available on record. Brief facts in this case are that the notice u/s 148 was issued on 28.03.2018 after recording reasons and taking approval from the Pr. CIT-II, Jaipur. The notice u/s 148 was sent to the assessee through speed post. In response to notice u/s 148, the assessee filed no return of income. On change of incumbent, Notice u/s 142(1)/questionnaire and its enclosure issued on 05.07.2018. The notice was sent through speed post. In response to notice u/s 142(1), none attended. Finally another opportunity was provided by issuing show cause/ notice u/s 142(1) for completion of assessment proceedings u/s 144 of the IT, Act, 1961 vide dated 04/10/2018 fixing the hearing on 10/10/2018. The show cause/notice u/s 142(1) was sent to the assessee through speed post. However, no compliance was made by the assessee. Finally, one another show cause notice issue on 29/11/2018 for proposed addition and case was fixed for hearing on 06/12/2018 by the Department. The notice was sent to the assessee through speed post. However, no compliance was made by the assessee. As the assessee did not comply with the notices issued u/s 148 dated 28.03.2018 and notice u/s 142(1)/show cause notice & 1341/JPR/2024 Banti Devi vs. ITO issued for completion of assessment u/s 144 of the IT, Act, 1961, therefore, the AO had no alternate but to complete the assessment ex- parte u/s 144 on merits, on the basis of material available on record. It is noted from the assessment order that the assessee neither had filed returns of income voluntarily u/s 139(1) of the Income-tax Act, 1961 nor in response to notice u/s 148 dated 28.03.2018. Thus the AO noted that as per AIR information/ITS data for the F.Y. 2010-11, the assessee had deposited cash of Rs. 18,19,628/-in her bank account with UCO Bank Ltd during the F.Y. 2010-11. As the assessee did not submit any details/documents in her defense in compliance to notice u/s 142(1) dated 05/07/2018 and show cause notice dated 04.10.2018, therefore, cash deposited of Rs.1819628/- in her bank account is treated as unexplained income and same is added to the total income of the assessee under the head income from other sources. Thus the AO made an addition of Rs.18,19,628/- in the hands of the assesse as unexplained cash deposited with UCO Bank Ltd. In first appeal, the ld. CIT(A) has confirmed the action of the AO holding as under:-

‘’5.1…….. On perusal of the same, it is seen that there were multiple cash deposits and cash withdrawals without explaining the source of the deposits or the reason for the withdrawal so observed. No documents apart from the cash flow and the bank account have been filed despite affording many opportunities during the appellate proceedings.

& 1341/JPR/2024 Banti Devi vs. ITO In view of the above, I find the impugned addition made by the AO in the assessment order dated 10.12.2018 correct and to that extent the order is upheld.’’ Since it is an admitted fact that the assessee is ex-parte before the AO and also before the ld. CIT(A), therefore, she could not put forth her defence. It was the bounded duty of the assessee to appear before the statutory authorities as and when called for. It is noticed that various opportunities were provided to the assessee for settling the issue but the assessee remained lethargic and unserious in pursuing her case. However, we are of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 5.5 Before parting, we may make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by AO independently in accordance with law. Thus, the appeal of the assesee is allowed for statistical purposes.

& 1341/JPR/2024 Banti Devi vs. ITO 6.1 Apropos ground of appeal of penalty u/s 271(1)©, it is noticed that the ld. CIT(A) dismissed this appeal of the assessee by observing as under:-

5. Examination of the issue and decision. 5.1 I have carefully considered the facts and circumstances of the case and the submission of the appellant. In view of the order u/s 250 passed in quantum appeal, where the addition made by the AO is upheld, the impugned penalty order is also upheld for the reason mentioned therein. In the result, the appeal is hereby dismissed.’’ 6.2 The Bench has heard both the parties and perused the material available on record. As regards the penalty appeal of the assessee relating to Section 271(1)(c ) of the Act, the Bench feels that since the quantum appeal of the assessee has been restored to the file of the AO for afresh adjudication, therefore, the fate of penalty appeal will be in accordance with the decision of quantum appeal. Hence, the same is restored to the file of the to act in accordance with law.

& 1341/JPR/2024 Banti Devi vs. ITO 7.0 In the result, both the appeals of the assessee are allowed for statistical purposes as indicated hereinabove Order pronounced in the open Court on 28 /03/2025.