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Income Tax Appellate Tribunal, “I” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI MANOJ KUMAR AGGARWALAND
Date of Hearing – 04.04.2018 Date of Order – 11.04.2018
2 Induja Traders Pvt. Ltd. O R D E R PER SAKTIJIT DEY, J.M.
Aforesaid appeals by the assessee are directed against two separate orders, both dated 9th June 2014, passed by the learned Commissioner (Appeals)–36, Mumbai, confirming the penalty imposed u/s 271(1)(c) of the Act amounting to ` 8,67,358 and ` 14,61,137 for the assessment years 2008–09 and 2009–10 respectively.
Brief facts which are more or less common in these appeals are that the assessee, a company is carrying on business of wholesale trading in textile / fabric, electronic items, foods and commodities and is also an exporter. Pursuant to a search and seizure operation carried out in case of Nilkamal Group on 18th December 2008 and survey conducted in the business premises of the assessee u/s 133A of the Act on the very same day, the assessments for the impugned assessment years were re–opened u/s 147 of the Act by the Assessing Officer. In the course of assessment proceedings, it was found by the Assessing Officer that as per incriminating material seized / impounded at the time of search / survey it came to the notice of the Department that the assessee was providing bogus bills commission basis and on earning commission in the range of 0.05% to 1.5%. After confronting the adverse material to the assessee, the Assessing Officer ultimately completed the assessment by estimating the income
3 Induja Traders Pvt. Ltd. received by the assessee on providing accommodation bills @ 0.75% which resulted in addition of ` 45,32,534 in assessment year 2008–09 and ` 72,77,412 in assessment year 2009–10. As it appears from the material on record, though, the assessee challenged the additions made before the appellate authorities but it was unsuccessful. On the basis of additions made by the Assessing Officer proceedings for imposition of penalty u/s 271(1)(c) were separately initiated alleging furnishing of inaccurate particulars of income by the assessee and ultimately the Assessing Officer passed orders imposing penalty u/s 271(1)(c) for both the assessment years under dispute. The assessee challenged the imposition of penalty by filing appeals before the first appellate authority.
As it appears from the order of the learned Commissioner (Appeals), the appeals were fixed for hearing before him on two dates i.e., on 28th April 2014 and 6th June 2014. As observed by the learned Commissioner (Appeals) in Para–4 of his order, since, no one appeared before him on the dates of hearing, he proceeded to dispose off the appeals ex–parte confirmed the penalty imposed u/s 271(1)(c) for both the assessment years.
The only submission made by the learned Authorised Representative before us is to restore the matter back to the file of the learned Commissioner (Appeals) for enabling the assessee to 4 Induja Traders Pvt. Ltd. represent its case as the learned Commissioner (Appeals) had disposed off the appeals ex–parte.
The learned Departmental Representative, though, defended the action of the learned Commissioner (Appeals) in disposing of the appeals ex–parte, however, he has no objection if the appeals are restored back to the file of the learned Commissioner (Appeals) for re– adjudication.
We have heard rival submissions and perused material on record. It is evident, the appeals were fixed for hearing before the learned Commissioner (Appeals) on two dates. However, it is not forthcoming from the orders of the learned Commissioner (Appeals) whether notice of hearing were served on the assessee or any attempt was made to afford a reasonable opportunity of being heard to the assessee. Therefore, considering the limited prayer of the assessee to afford opportunity to represent its case before the learned Commissioner (Appeals), we are inclined to restore the matter to the file of the learned Commissioner (Appeals) for re–adjudication on merits after affording reasonable opportunity of being heard to the assessee. Further, we direct the assessee to respond to the notice of hearing to be issued by the learned Commissioner (Appeals) and appear before him on the date fixed to represent its case properly. Grounds are allowed for statistical purposes.
5 Induja Traders Pvt. Ltd.
In the result, both the appeals are allowed for statistical purposes. Order pronounced in the open Court on 11.14.2018