SHRI HARIDWAR PRASAD JAISWAL,BASTI vs. INCOME TAX OFFICER, BASTI

The ld. AR at the outset invited our attention to the fact that there is a delay in filing the appeal of nine days which had happened due to illness of the assessee and for which the necessary medical certificate has been enclosed with the application for filing of condonation of delay. Therefore, it was prayed that the delay in filing the appeal may be condoned.

The ld. DR do not have any objection to the application for condonation of delay and finding the reason for delay justified, the delay was condoned and ld. AR was asked to proceed with his argument. 4. The ld. AR submitted that the assessee did not appear before the Assessing Officer on two occasions and therefore the Assessing Officer imposed a penalty of Rs.20,000/- u/s. 271(1)(b) of the Act, amounting to Rs.10,000/- for each occasion. The ld. AR submitted that before passing of order by Assessing Officer u/s. 143(3) of the Act the assessee did comply with the notices and therefore the penalty imposed was unjustified. Reliance in this respect was placed on a judgment of ITAT, Lucknow bench in the case of M/s Satyanarayan and Sons, in where vide order dated 29.3.2019 under similar circumstances, the Tribunal had deleted similar penalties and therefore it was prayed that the penalties u/s. 271(1)(b) may be deleted. 5. The ld. DR on the other hand relied on orders of authorities below. 6. We have heard the rival parties and have perused the material available on record. We find that the Assessing Officer imposed the penalty of Rs.10,000/- each for non appearance of the assessee on two occasions. The assessee in his written submissions has stated that the Assessing Officer had passed an assessment order u/s. 143(3) of the Act on 06.12.2016. However, he has not filed any copy of such assessment order therefore there is no evidence that the assessment order was passed u/s. 143(3) of the Act and the argument of the assessee that when an order u/s. 143(3) is passed the penalty u/s. 271(1)(b) cannot be imposed is not verifiable from records. Moreover, we find that before ld. CIT(A) issued various notices nobody appeared and ld. CIT(A) passed exparte orders and dismissed the appeal. Therefore in view of these facts and circumstances, we deem it appropriate to remit the issue back to ld. CIT(A) who should pass a fresh order after giving sufficient opportunity to the assessee of being heard and in accordance with law. 7. In the result, the appeal of the assessee is allowed for statistical purposes.