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Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: Shri Joginder Singh & Shri G Manjunatha
Date of hearing 03-10-2018 Date of pronouncement 03-10-2018 O R D E R Per G Manjunatha, AM : These two appeals are filed by the assessee. Appeal in is an appeal filed against penalty levied us 271(1)(c) and arise out of the order of the CIT(A)-10, Mumbai dated 19-01-2017 whereas appeal in ITA No.3388/Mum/2017 is quantum appeal and arises out of the order of CIT(A)-10, Mumbai also dated 19-01-2017.
Both the appeals pertain to assessment year 2000-01. Since both the appeals are interconnected, for the sake of convenience, these appeals
2 Anand I Power td were heard together and are disposed of by this common order. ITA 3388/Mum/2017
The brief facts of the case are that the assessee company is engaged in the business of manufacturing and sale of piston circles filed its return of income for AY 2000-01 on 29-11-2000 declaring total income of Rs.73,97,366. The return was processed u/s 143(1) of the Act. Subsequently, the case was reopened u/s 147 of the Act and the assessment was completed u/s 143(3) r.w.s. 147 of the Act on 10-03- 2005 determining total income at Rs.5,97,65,571 interalia making various additions / disallowances. The assessee carried the matter in appeal before the first appellate authority. The CIT(A), vide his order dated 26-07-2005 dismissed appeal filed by the assessee on the ground that there was delay in filing appeal for which the assessee has not offered any sufficient and valid grounds for condonation of delay. The assessee carried the matter in further appeal before ITAT. The ITAT vide order dated 15-04-2009 has condoned delay in filing appeal before the CIT(A) and set aside the file to the CIT(A) for disposal on merits.
Consequent to the directions of the ITAT, the CIT(A) has posted the case for hearing on 20-01-2016. In response to notice, Shri Prasad Bapat, CA and AR appeared for hearing and sought adjournment.
Thereafter, the assessee neither appeared nor filed any details inspite of 3 Anand I Power td number of opportunities given by posting the case for hearing on 7 occasions. Therefore, the Ld.CIT(A) disposed of the appeal filed by the assessee exparte on the ground that mere filing appeal without prosecuting effectively did not serve the purpose. Aggrieved by the order of CIT(A), the assessee is in appeal before us.
The Ld.AR for the assessee, at the time of hearing submitted that the Ld.CIT(A) was erred in dismissing the appeal for alleged non appearance by the assessee, whereas in terms of section 251(1)(a) of the Act, the Ld.CIT(A) has no such power and ought to have passed order on merits of the case. The Ld.AR further submitted that the ITAT, in its order dated 15-04-2009 had given categorical direction to the CIT(A) to pass the order on merits. However, the Ld.CIT(A) has again dismissed the appeal on technical reasons for non appearance. The Ld.AR further submitted that the assessee has attended on 20-01-2016 and filed a paper book containing various details to justify its case, but the Ld.CIT(A) has passed order exparte without considering the evidences filed by the assessee and hence, the case may be set aside to the file of the Ld.CIT(A) to decide on merits.
The Ld.DR, on the other hand, submitted that the assessee is a habitual defaulter in attending the proceedings before the CIT(A) which is evident from that fact that the CIT(A) has given number of 4 Anand I Power td opportunities by posing the case of hearing on various dates as narrated in his order, but the assessee neither appeared nor filed any details.
Therefore, giving another chance to the assessee will not serve any purpose and accordingly order passed by the Ld.CIT(A) should be upheld.
We have heard both the parties and perused the material available on record. It is an admitted fact that the Ld.CIT(A) has given 7 dates of hearing to the assessee, but the assessee appeared on some dates and filed adjournment application without filing any details. Therefore, we cannot find fault with the order passed by the Ld.CIT(A) when the assessee did not appear on the dates given for hearing. But fact remains that although the ITAT has set aside the file to the CIT(A) to decide the issues on merits, Ld.CIT(A) has dismissed appeal filed by the assessee on technical grounds for non appearance without discussing the issues on merits in spite of a categorical directions from the ITAT.
Further, the assessee claims that it has filed various details in the form of paper book on 20-01-2016 and the CIT(A) has not considered any evidence before passing the order. Therefore, we are of the considered view that the issue needs to be considered once again by the Ld.CIT(A) in the light of evidence filed by the assessee vide its letter dated 20-01- 2016. However, the assessee cannot be given a second chance before
5 Anand I Power td the CIT(A) unless the loss of precious time is suitably compensated with cost. Therefore, we are of the considered view that the assessee shall pay a cost of Rs.20,000 and such cost shall be paid on or before 15 days from the date of receipt of this order to the Prime Minister’s Relief Fund. The proof of payment to the Prime Minister’s Relief Fund shall be produced before the Ld.CIT(A) before taking up the appeal for hearing.
We, further make it clear that the assessee shall appear before the Ld.CIT(A) without seeking any adjournment. Accordingly, the appeal filed by the assessee is allowed, for statistical purpose. ITA 3387/Mum/2017
This appeal arise out of order passed by the Ld.CIT(A)-V, Mumbai, vide his order dated 19-01-2017, allowing partial relief towards penalty levied by the AO u/s 271(1)(c) of the Income-tax Act, 1961. Since, we have set aside the quantum appeal to the file of the Ld.CIT(A) to decide on merits, consequential penalty levied by the AO u/s 271(1)(c) is also restored to the file of the Ld.CIT(A) for fresh consideration after the outcome of quantum appeal filed by the assessee against order passed by the AO making various additions / disallowances. Accordingly, we set aside the order passed by the Ld.CIT(A) and direct him to consider the penalty appeal after deciding the quantum appeal on merits.
In the result, appeal filed by the assessee is allowed for statistical
6 Anand I Power td purpose. 8. As a result, both the appeals filed by the assessee are allowed for statistical purpose.
Order pronounced in the open court on 03rd October, 2018.