DR.SANJEEV S KALSOOR,HUBLI vs. ASST. COMMISSIONER OF INCOME TAX, BELGAUM

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ITA 1885/BANG/2016Status: DisposedITAT Bangalore25 May 2018AY 2011-123 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that quantum and penalty proceedings are separate and that the penalty decision should not solely rely on the quantum appeal decision. The CIT(A) order was set aside due to lack of proper opportunity for the assessee.

What were the facts?

The assessee appealed against penalties imposed under Section 271A of the IT Act for multiple assessment years. The assessee contended that the CIT(A) order was ex-parte and that no proper opportunity of hearing was provided.

What were the issues?

Whether the penalty under Section 271A was justified without a proper hearing and independent examination of facts. Whether the CIT(A) erred by relying on the quantum appeal decision for penalty proceedings.

Which sections of the Income-tax Act were involved?

Section 271A,Section 44AA

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “C” BENCH : BANGALORE

Before: SHRI ARUN KUMAR GARODIA & SHRI LALIET KUMAR

For Appellant: Shri Ravishankar, Advocate
For Respondent: Shri D. Sudhakara Rao, CIT (DR)
Hearing: 14.05.2018Pronounced: 25.05.2018

O R D E R PER BENCH: All these seven appeals are filed by the assessee which are directed against a combined order of ld. CIT (A)-Panaji dated 27.07.2016 for Assessment Years 2007-08 to 2013-14. All these appeals were heard together and are being disposed of by way of this common order for the sake of convenience.

2.

In all these appeals, although the assessee has raised several grounds of appeal in each year but there is only one grievance in all these appeals that the AO is not justified in imposing penalty of Rs. 25,000/- in each year u/s. 271A of IT Act. At the very outset, it was noted by the bench that the impugned order of CIT(A) is ex-parte qua the assessee. The bench wanted to know as to why there is no appearance before CIT(A). In reply, it was submitted by ld. AR of assessee that all these appeals were filed before CIT(A) on 18.08.2015 and the same were kept pending for this reason that the quantum appeals were also pending. He further submitted that although the assessee has made written submissions dated 25.07.2016 before CIT(A) but no proper opportunity of hearing was provided to ld. AR of assessee and hence, the matter may be restored back to the file of CIT(A) for fresh decision after providing reasonable opportunity of being heard to the assessee in the interest of justice. The ld. DR of revenue supported the order of CIT(A).

3. We have considered the rival submissions. We find that it is noted by CIT(A) in Para 3.3 of his order that as per the submission of assessee before him, it was stated by assessee that assessee was using the services of the accountant and auditor for various compliances under the IT Act and also filing the returns regularly for several years and books of accounts are regularly audited. He also noted that the AO has reproduced certain part of his statement recorded on oath on 21.11.2012, wherein, the assessee has stated that he has maintained cash book, bank book and general ledger on computer on tally package and assessee also produced the audit reports u/s. 44AB along with the Balance Sheet and income and expenditure account as a proof that his accounts were audited and he filed the returns in time. After noting these facts the ld. CIT(A) noted in Para 3.6 of his order that he has decided the quantum appeals of the assessee for all the Assessment Years for which penalties u/s. 271A have been levied by the AO. In that Para, he has noted that due to non- maintenance of proper books like OPD register for repeat patients, there were lot of difficulties for the AO to determine the correct amount of fees received by the assessee from the patients. On the basis of this decision in quantum appeal, CIT(A) has confirmed the penalty u/s. 271A also. In our considered opinion, quantum proceedings and penalty proceedings are separate proceedings and therefore, in penalty proceedings, the decision should not be based merely on the decision in quantum proceedings and in penalty proceedings, the facts should be examined afresh and the decision should be rendered independently after examining the facts in proper perspective. It is not clear as to when the assessee produced audit report u/s. 44AA of IT Act, how it can be said that books of accounts are not maintained by assessee u/s. 44AA of IT Act. Hence, we feel it proper that the issue should be restored back

to the file of CIT(A) for fresh decision after providing reasonable opportunity of being heard to both sides. Accordingly, we set aside the order of CIT(A) in all these years and restore the matter back to his file for fresh decision after providing adequate opportunity of being heard to both sides and after considering the above discussion.

4.

In the result, all the seven appeals filed by the assessee are allowed for statistical purposes. Order pronounced in the open court on the date mentioned on the caption page.

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