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Income Tax Appellate Tribunal, AMRITSAR BENCH; AMRITSAR.
Before: SH. SANJAY ARORA & SH. N. K. CHOUDHRY
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A. No.635 (Asr)/2016 Assessment Year: 2007-08 [PAN: AAGFD 0618M]
Dilbagh Fashion, Vs. Income Tax Officer, 132-C, Model Town, Ward-1, Phagwara. Phagwara. (Appellant) (Respondent)
Appellant by : None Respondent by: Sh. Rahul Dhawan (D.R.) Date of Hearing: 06.02.2018 Date of Pronouncement: 09.02.2018
ORDER Per Sanjay Arora, AM: This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-2, Jalandhar ('CIT(A)', for short) dated 27.09.2016, confirming the levy of penalty u/s. 271(1)(c) of the Income Tax Act, 1961 ('the Act' hereinafter) for assessment year (AY) 2007-08.
The ld. CIT(A) has per an ex parte order confirmed the levy of penalty in the absence of any improvement in its’ case by the assessee-firm in the business of trading in cloth, etc., before him (refer para 4 of the impugned order). In fact, the assessee did not attend any proceedings before him and without any reason/s being explained, leading to an inference that it was not interested in prosecuting its
2 ITA No.635/(Asr)/2016(AY 2007-08) Dilbagh Fashion v. ITO appeal before him. Be that as it may, in our considered view, the ld. CIT(A) was, in terms of section 250(6) of the Act, required to dispose of the assessee’s appeal on merits, i.e., after considering the assessee’s explanation and the material available on record, per a speaking order. His order, though states of it having been passed on the basis of the material on record, is sans any reference to the facts of the case; the material on record, or even the assessee’s explanation in the penalty proceedings. Why, there is no disposal of the several grounds raised before him, which include reference to the decisions by the Hon'ble jurisdictional High Court, binding in their ratio on him, as they are on us. His order does not reflect the consideration thereof, as well as the reason/s for their inapplicability, i.e., assuming so. Besides, some of the grounds are factual, which would require of him to dwell on the facts of the case, issuing definite findings of fact. Little wonder that the assessee has raised the same set of grounds, being unaddressed, before us. In fact, as apparent from the cause title of the order, even the Department is not represented before him. The ld. Departmental Representative (DR) was specifically questioned by the Bench in the matter, i.e., as to how the impugned order could be regarded as a speaking order, and which he failed to answer, much less satisfactorily. The same is thus not sustainable in law.
Under the circumstances, we only consider it proper to set aside the impugned order, and restore the matter back to the file of the ld. CIT(A) for adjudication of the assessee’s appeal as contemplated u/s. 250(6), i.e., on merits, issuing definite findings of fact in accordance with law. Though he is entitled to draw an adverse inference/s, i.e., in consonance with the facts and circumstances of the case, where the assessee does not avail the opportunity of hearing before him, meeting the adverse findings against it, so that the burden to substantiate its’ case –
3 ITA No.635/(Asr)/2016(AY 2007-08) Dilbagh Fashion v. ITO which is on the assessee, is not met, the same should find clear mention in his order. We decide accordingly.
In the result, the assessee’s appeal is allowed for statistical purposes. Order pronounced in the open court on February 09, 2018
Sd/- Sd/- (N. K. Choudhry) (Sanjay Arora) Judicial Member Accountant Member Date: 09.02.2018. /GP/Sr. Ps. Copy of the order forwarded to: (1) The Appellant: Dilbagh Fashion, 132, Model Town, Phagwara. (2) The Respondent: ITO, Ward-1, Phagwara. (3) The CIT(A)-2, Jalandhar. (4) The CIT, concerned. (5) The Sr. DR, I.T.A.T.