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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
This appeal filed by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-44, Mumbai [in short CIT(A)], in appeal No. CIT(A)-44/ITO 32(2)(4)/ITA-101/2014-15, dated 14.02.2017. The assessment was completed by the Income Tax Officer (in short ‘ITO’/’AO’) vide order dated 30.12.2011 for the AY 2009-10 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’). The penalty was levied by Income Tax Officer, Ward 32(2)(4), Mumbai under section 271(1)(c) of the Act vide order dated 16.02.2015.
2. The only issue in this appeal of assessee is against the order of CIT(A) confirming levy of penalty under section 271(1)(c) of the Act. For this assessee has raised the following three grounds: -
“1. An order was passed under section 143(3) of the Income-Tax Act, 1961 adding an amount of ₹ 60,26,200/- under section 269SS of Income Tax Act, 1961.
An order under section 143(3) of Income Tax Act, 1961 is in appeal with I.T. Act and yet to be heard.
A penalty under section 271(1)(c) of the Income Tax Act, 1961 amounting to ₹ 18,62,100/-.”
None is present from the assessee’s side.
3. At the outset, we have gone through the order of CIT(A) and noticed that the order is ex-parte and also on merits, there is no adjudication at all as to how the assessee is liable for penalty under section 271(1)(c) of the Act. The CIT(A) confirmed the order of AO levying penalty under section 271(1)(c) of the Act by only stating that “in absence of any written submission or detail filed by the appellant it is held that the AO has rightly imposed a penalty under section 271(1)(c) of the Act. Grounds of appeal Nos. 1&2 are dismissed. The penalty order under section 271(1)(c) of the Act dated 16.02.2016 (actually it is 16.02.2015) passed by the ITO 32(2)(4) is confirmed”. In view of the above, it is clear that the CIT(A)’s order is totally non-speaking and no order on merits.
The facts of the case are that the AO made addition of cash deposit of ₹ 60,26,200/- in the Saving Bank Account of the assessee maintained with the Development Credit Bank Ltd. According to AO, these were unexplained cash credit and source of deposit in the bank account is not proved. We find that even quantum appeal has been dismissed by ITAT in dated 25.04.2017. But, now the only issue before us is whether the CIT(A) can pass ex-parte order without speaking order and not discussing the merits. According to us, no. Hence, we set aside the order of CIT(A) and remand this penalty appeal back to his file for fresh adjudication. Needless to say that the CIT(A) will adjudicate on merits after allowing 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 open court on 28-08-2018.