JYOTI ENTERPRISES,FARIDABAD vs. ITO, WARD - 1(3), FARIDABAD

At the outset, ld. counsel for the assessee submitted that in the quantum proceedings, the Tribunal vide order dated 24.05.2018 in has set aside the matter to the file of the ld. CIT (A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard, therefore, the impugned penalty appeal should also be set aside.

Learned Department Representative has no objection and he too admitted that in the quantum proceedings the matter has been set aside to the file of the ld. CIT (A).

After considering the aforesaid submissions, we find that in the quantum proceedings the Tribunal has set aside the entire matter to the file of the Ld. CIT (A) after observing and holding as under:- “I have heard the submissions and perused the material available on record. It is seen that the assessee’s returned income of Rs.13,74,000/- odd was selected for scrutiny, wherein the assessment was concluded at an income of Rs. 29,43,820/-. The additions made by the AO were challenged in appeal before the CIT(Appeals) where initially time was sought subsequently on 25.11.2014 neither anyone appeared order nor any request for time was made, In the light of the submissions advanced by the counsel, we find that the assessee remained unrepresented for the reasons beyond the control of the counsel. Accordingly, accepting the submissions to be correct and true and also accepting the oral undertaking giving by the Ld. AR the impugned order is set aside back to the file of the C1T(A) with the direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard. It is made clear that the opportunity so provided should not be abused and the assessee should participate fully and fairly in the proceedings before the CIT(A) as failing which the CIT(A) would be at liberty to pass an order on the basis of material available on record. Said order was pronounced in the open court at the time of hearing itself.”

In view of the aforesaid fact that quantum appeal has been set aside to the file of the ld. CIT (A), therefore, impugned penalty appeal is also remitted to the file of the ld. CIT(A) to be decided a fresh after the disposal of the quantum and in accordance with law.

In the result, the appeal of the assessee is allowed.