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Income Tax Appellate Tribunal, NEW DELHI BENCH “A”: NEW DELHI
Before: SHRI SUNIL KUMAR YADAV & SHRI L.P. SAHU
O R D E R
Per Sunil Kumar Yadav, Judicial Member
This appeal is preferred by the assessee against the order dated 27.08.2013 of the CIT(Appeals)-XXII, New Delhi inter alia on the following grounds:- “
1. That the penalty order passed by Ld. AO is bad in law and not based on facts.
2. That the assessment order passed by Ld. Assessing Officer is based on guesses and conjectures. And hence under these circumstances penalty cannot be imposed.
3. That as per section 122 of Transfer of Property Act 1822 a gift is complete in respect of existing movable and immovable property when there is an transfer of such property by a person called “Donee”. If these conditions are satisfied then a gift is complete and is not open for the challenge until the same is proved to the contrary with the cogent and strong evidence.
4. That I had discharged by burden by establishing the identity of the donor, capacity of the donor to give the gift and genuineness of the transaction.
5. That Ld. Assessing Officer has not brought any direct or indirect material on record to hold that the transaction is not genuine. 6. That the Ld has discussed probabilities and Ld CIT(A) has discussed possibility while upholding penalty on me. This is in contrast of foundation of law that says “It is better that ten guilty persons escape than that one innocent suffer” – William Blackstone.” RELIEF CLIAMED:- 1. Penalty order passed by ld. ACIT may please be set aside and penalty be revoked.”
During the course of hearing, the ld. counsel for the assessee has contended that the Assessing Officer has not issued any notice for initiating penalty proceedings u/s. 271(1)(c) of the Income-tax Act, 1961 [“the Act”] before levying the penalty. In support of his contention, he has invited our attention to the proceedings recorded by the Assessing Officer. It is also submitted that before the CIT(Appeals), he has raised a specific argument in this regard, but the CIT(Appeals) has not given any finding thereon. Since the penalty was levied without issuing a notice for initiating the penalty proceedings, the penalty confirmed by the CIT(Appeals) deserves to be set aside.
The ld. DR, on the other hand, has contended that before the CIT(Appeals), assessee has not taken any ground in this regard and more so, he has not pressed the ground with regard to the opportunities afforded to the assessee.
Having carefully examined the orders of lower authorities in the light of rival submissions, we find that before the CIT(Appeals) the assessee has not taken a specific ground with respect to service of notice for initiating penalty proceedings. She has simply raised a ground with regard to the opportunities afforded to the assessee. We have also carefully examined the documents filed before us and on perusal, we find force in the contention of the assessee, but clinching evidence is not available on the basis of which decision can be taken. We are, therefore, of the view that let the issue of service of notice for initiating penalty proceedings be re- examined by the CIT(Appeals). Accordingly, we set aside the order of CIT(Appeals) and restore the matter to his file, with a direction to readjudicate the issue after affording opportunity of being heard to the assessee.
In the result, the appeal of the assessee is allowed for statistical purposes.
Pronounced in the open court on this 22nd day of September 2016.