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Income Tax Appellate Tribunal, DELHI BENCH ‘SMC-II’, NEW DELHI
Before: SMT. DIVA SINGH
Appellant by Shri Kapil Dev, (Assessee in Person) Respondent by Shri F.R. Meena, Sr.DR Date of hearing 09-11-2016 Date of pronouncement 050050050005-01-2017 O R D E R PER DIVA SINGH, J.M. : The present appeal has been filed by the assessee assailing the correctness of the order dated 23.02.2016 of the CIT(A), Faridabad pertaining to 2010-11 assessment year on various issues including lack of opportunity as addressed in ground no.3 which read as under :- “3. A.O. has wrongly made addition in the income of assessee without giving a reasonable opportunity of being heard. There is not any valid services of notices during the course of assessment. No any valid services of order/notices made to assessee any time. Its further stated that counsel of assessee never fulfill his duty. He always said that he is properly looking for the assessment proceedings. He never puts proper facts & grounds to the learned A.O. and CIT (Appeals).”
The assessee appearing in person submitted that the addition in the quantum proceedings were made by the Assessing Officer in an order passed u/s 144 of the Income-tax Act, 1961. In the appeal against the penalty order it was submitted that the assessee had filed written submissions before the CIT(A), who has mentioned this fact in para 3 of the impugned order. The submissions of the assessee it was stated have not been addressed. The CIT(A) it was submitted only repeats the reasons of the Assessing Officer justifying the levy of penalty. On query the assessee was unable to state about the outcome of the quantum proceedings before the CIT(A).
The Ld. Sr.DR considering the appellate order in the penalty proceedings wherein the assessee was found to have been represented by Shri N.C. Garg, CA could not dispute that written submissions had been filed by the assessee as this fact is recorded in the impugned order itself. However, he was unable to show where the submissions of the assessee are recorded and discussed and on what grounds were found to be not acceptable.
I have heard rival submissions and perused the material on record. A perusal of the record shows that in the HDFC Bank and IDBI Bank, Sonepat the assessee who is described as an agriculturist in the assessment order was found to have deposited Rs.16,68,400/-. Addition of the said amount was made in the hands of the assessee by the Assessing Officer by an order passed u/s 144/147 dated 30.10.2013. Penalty u/s 271(1)(c) was imposed on the assessee in the absence of any explanation offered in the penalty proceedings. The assessee as per ground no.3 raised before the CIT(A) is found to have stated that the penalty order may be decided after the quantum appeal. A perusal of the impugned order shows that though the ld. Commissioner records in para 3 that “in response to the notice u/s 250 of the Income tax Act, 1961 Shri N. C. Garg, CA, the authorized representative of the appellant attended and filed written submission in support of the grounds of appeal
taken by the appellant and the same are placed on record”. However, in para 8 he upheld the penalty order and contradicts his earlier finding and records that “During the appellate proceedings the appellant has not made any written submissions, though the case of the appellant was discussed with the Ld. AR, Sh. N.C. Garg, CA on 09.02.2016”. Thus not only on the grounds of the obvious contradiction in the appreciation of basic facts i.e. the filing of written submissions by the assessee but even otherwise the correctness of the conclusion drawn which is under challenge cannot be adjudicated upon as neither the ld. CIT(A) has cared to discuss the contents of the written submissions in his order nor has he cared to address why they cannot be accepted. Accordingly, in the absence of any relevant discussion whatsoever on the issues before the CIT(A) in the impugned order the correctness of the conclusion is open to the challenge of being perverse as the order is a non-speaking order. In view of the above, the impugned order is set-aside and the issues are restored back to the file CIT(A) with a direction to pass a speaking order in accordance with law after giving the assessee a reasonable opportunity of being heard.
5. In the result, the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 05th January, 2017.