PANKAJ DUA,NEW DELHI vs ACIT, NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘F’ NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER (Assessment Year: 2005-06) Pankaj Dua vs ACIT 10/45, Geeta Colony, Circle 36(1) New Delhi. New Delhi. PAN No. AKPPD9635F APPELLANT RESPONDENT Appellant/ Assessee by Sh. Ashish, CA Respondent/ Revenue by Sh. Atiq Ahmed, Sr. DR Date of Hearing 13.06.2018 Date of Pronouncement 18.06.2018 ORDER

PER SUCHITRA KAMBLE, JM

This appeal is filed by the assessee against the order dated 13.11.2014 passed by the CIT(Appeals)-XXVII, New Delhi for AY 2005-06.

The Grounds of appeal

are as under: 1. “That on the facts and circumstances of the case and in law, both the Lower Authorities i.e. AO & CIT (A), have erred in imposition of penalty u/s 271(1)(c) of the Income Tax Act, 1961 and as such the order impugned herein under may kindly be held as bad in law and the penalty imposed of Rs. 7,86,046/- may kindly be deleted.

2. That without prejudice, the penalty u/s 271(1)(c ) has been imposed on presumptive basis without any satisfaction or without there being any concealment of income or filing of inaccurate particulars. The penalty u/s 271(1)(c ) of Rs. 7,86,046/- may thus be deleted.

3. That on the facts and circumstances of the case and in law, the AO has erred in not appreciating the submissions submitted during the course of penalty proceedings & also in not stating as to the how & to what extent the submissions of the assessee are not considered. As such penalty of Rs. 7,86,046/- u/s 271(1)(c ) of the Act may kindly be deleted.

4. That no prejudice to any of the grounds, the order passed by the AO u/s 271(1)(c ) is barred by limitation in view of proviso to section 275(1)(a) and may be thus so held as bad in law.

That we crave to add, alter, delete or modify any of the above grounds of appeal

at the time of hearing.”

3. Assessment was originally completed u/s 144 of the Income Tax Act, 1961 on 24.12.2007 determining the total income at Rs. 24,21,920/-. In this case, assessee did not furnish any return of income for the year under consideration and information was received that assessee deposited Rs. 24,21,920/- in his savings bank account in Gurgaon, Gramin Bank as on 31.03.2005. In the first round of appeal the addition was deleted by CIT(A) and the Department filed an appeal before the Tribunal being which restored the issue of addition of Rs. 24,21,920/- to the file of Assessing Officer vide order dated 16.11.2009. After the receipt of the order the assessment was completed u/s 143(3)/ 254 of the Act vide order dated 20.12.2010 determining the total income at Rs. 24,21,920/-. The order was confirmed by the CIT(A) vide order dated 23.08.2011. Thereafter, the assessee filed appeal again before the Tribunal, which was dismissed vide order dated 13.12.2012 being ITA No. 5183/Del/2011. The Assessing Officer observed that the assessee concealed the particulars of his income/furnished inaccurate particulars of his income, therefore, penalty proceedings u/s 271(1)(c) of the Act were initiated by issuing penalty notice u/s 274 of the Act read with Section 271(1)(c) of the Act dated 20.12.2010. The penalty was kept in abeyance as the assessee filed appeal first with the CIT(A) and thereafter in Tribunal. After receiving the Tribunal order dated 13.12.2012, the show-cause notice dated 15.03.2013 was issued. On 21.03.2013 the assessee filed letter dated 20.03.2013 requesting that the case is pending in appeal. Subsequently, show cause notices dated 22.07.2013 and 26.08.2013 were issued. However, no one attended the proceedings and there was no reply to the notices issued. On 24.09.2013 reply was filed stating that the assessee’s financial condition is not good and he is earning income of Rs. 7,000/- per month and, therefore, penalty u/s 271(1)(c ) of the Act should not be imposed. After considering the reply of the assessee the Assessing Officer held that assessee concealed the particulars of his income of Rs. 24,21,920/- represented by cash of Rs. 24,21,920/- deposited in his savings bank account in Gurgaon, Gramin Bank. Thus, the Assessing Officer imposed penalty of Rs. 7,86,046/-.

Being aggrieved by the penalty order the assessee filed appeal before the CIT(A). Before the CIT(A) none appeared on behalf of the assessee and the CIT (A) dismissed the appeal of the assessee.

5. The Ld. AR submitted that the CIT(A) has not considered the grounds of appeal of the assessee and passed ex-parte order.

The Ld. DR relied upon the penalty order and the order of the CIT(A).

We have heard both the parties and perused all the records. From the records and after perusal of the order of the CIT(A), it can be seen that the assessee has not been given opportunity of hearing before the CIT(A) to contest his appeal relating to penalty u/s 271(1)(c) of the Act. The order of the CIT(A) is ex-parte. Therefore, it will be appropriate to restore this appeal before the CIT(A) for fresh adjudication on merit. Needless to say that the assessee be given opportunity of hearing by following principles of natural justice. The assessee is also directed to appear before the CIT(A) and should not take frivolous adjournments.

In the result, the appeal of the assessee is allowed for statistical purposes.

PANKAJ DUA,NEW DELHI vs. ACIT, NEW DELHI