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Income Tax Appellate Tribunal, PATNA BENCH, PATNA
IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA Before Sh. N. K. Saini, AM and Sh. Sudhanshu Srivastava, JM ITA No. 57/Pat./2017 : Asstt. Year : 2011-12 Vijay Kumar Pandav, Vs Income Tax Officer, Chukti Mansi, Ward-6(4), Distt. Khagaria-851214 Patna (APPELLANT) (RESPONDENT) PAN No. AGAPP0171D Assessee by : Sh. Manish Kumar Pandey, Adv. Revenue by : Sh. Kausik Kumar Das, Sr. DR Date of Hearing : 13.03.2018 Date of Pronouncement : 14 .03.2018 ORDER Per N. K. Saini, AM: This is an appeal by the assessee against the order dated 25.01.2017 of ld. CIT(A)-2, Patna.
The only grievance of the assessee in this appeal relates to the sustenance of penalty of Rs.37,35,760/- levied by the AO u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’) by passing the ex-parte order.
Facts of the case in brief are that the AO framed the assessment at an income of Rs.1,28,95,143/- by adding Rs.1,20,99,812/- as an unexplained cash deposit u/s 40A(3) of the Act vide assessment order dated 29.03.2014. The AO also initiated the penalty proceedings u/s 271(1)(c) of the Act. Since the assessee had not complied to the notices issued, the AO levied the penalty
2 ITA No. 57/Pat./2017 Vijay Kumar Pandav of Rs.37,35,760/- u/s 271(1)(c) of the Act vide order dated 26.09.2014.
Being aggrieved the assessee carried the matter to the ld. CIT(A) who dismissed the appeal in limine by observing that sufficient opportunity of being heard had been allowed to the assessee but there was no compliance.
Now the assessee is in appeal. The ld. Counsel for the assessee submitted that no notice of hearing was received by the assessee. Therefore, the ld. CIT(A) was not justified in dismissing the appeal. It was also stated that the ld. CIT(A) had not decided the issue on merit.
In his rival submissions, the ld. Sr. DR supported the impugned order passed by the ld. CIT(A).
We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is noticed from the face of the impugned order that the ld. CIT(A) mentioned as under: “Date of hearing: None Present for the Appellant: None Present for the Department: None”
From the above noting, it is clear that no opportunity of being heard was given. The ld. CIT(A) simply stated that the notices were issued for hearing but there was no compliance. However, he has not mentioned as to whether any of the notice issued was served upon the assessee. It is well settled that nobody should be condemned unheard as per the maxim “audi alteram partem”. We, therefore, considering the totality of the facts of the present case, deem it
3 ITA No. 57/Pat./2017 Vijay Kumar Pandav appropriate to set aside this issue back to the file of the ld. CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.
In the result, the appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Court on 14/03/2018)
Sd/- Sd/- (Sudhanshu Srivastava) (N. K. Saini) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 14 /03/2018 *Subodh* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5.DR: ITAT ASSISTANT REGISTRAR
4 ITA No. 57/Pat./2017 Vijay Kumar Pandav Date Initial 1. Draft dictated on 13.03.2018 PS 2. Draft placed before author 14.03.2018 PS 3. Draft proposed & placed before the JM/AM second member 4. Draft discussed/approved by Second JM/AM Member. 5. Approved Draft comes to the Sr.PS/PS PS/PS 6. Kept for pronouncement on PS 7. File sent to the Bench Clerk PS 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk. 10. Date of dispatch of Order.