BHAGVAN DAS,FIROZABAD vs. ITO WARD 2(2)(1), FIROZABAD

The assessee has filed appeal against the order of the Learned Commissioner of Income-tax (Appeals)/National Faceless Appeal Centre (NFAC), Delhi [“Ld. CIT(A)”, for short] dated 29.12.2023 for the Assessment Year 2012-13.

At the time of hearing, ld. AR of the assessee brought to our notice that assessee has filed this appeal against the penalty order with delay of 431 days and assessee has filed affidavit explaining the reason for delay in filing appeal before the ITAT and in the affidavit, it was submitted that assessee was not aware of the order passed by the ld. CIT (A) and it was submitted that the email id registered on the portal was not of the assessee. Therefore, assessee did not have any access to the electronic communication sent by the Department on the email id which was not of the assessee. The assessee came to know of the same when the quantum appeal was passed by the ITAT and immediately assessee became aware and took immediate steps to file the relevant appeal against the penalty order and prayed that the delay was not intentional and may be condoned.

On the other hand, ld. DR of the Revenue objected to the same and submitted that the delay is inordinate and should not be condoned.

Considered the rival submissions and material placed on record. The assessee has explained by filing an affidavit that the Department has communicated the order through email id which was not belonged to the assessee, therefore, assessee was not aware of the passing of such order and considering reasonableness of the explanation submitted by the assessee and further we observe that this is a penalty order for which quantum is already deleted by the ITAT and considering the merit of the case, we are inclined to condone the delay.

Coming to the merits of the issue, ld. AR of the assessee brought to our notice that the relevant quantum on which penalty was levied was disposed off by the ITAT vide dated 22.04.2024 and the impugned order on quantum was remitted back to the ld CIT (A) for de novo adjudication after affording reasonable opportunity be given to the assessee. Since the issue was remitted back to the ld. CIT (A), the quantum of penalty levied may not survive and he prayed that the same may be disposed off.

On the other hand, ld. DR of the Revenue relied on the orders of the lower authorities.

Considered the rival submissions and material placed on record. We observe that the quantum appeal was remitted back to the ld. CIT (A) to decide the issue afresh as per law. Since the quantum of penalty was levied based on the aforesaid quantum order and since the same was remitted back to the ld. CIT (A), the penalty levied by the AO may not survive as it is and as and when ld. CIT (A) disposed off the quantum appeal depending upon the findings of ld. CIT (A), fresh penalty proceedings may be initiated and levied accordingly. At this juncture, the relevant penalty levied by the AO will not survive. Accordingly, the penalty levied at this stage deserves to be deleted. At the same time, we are giving opportunity to the AO to levy the penalty as per findings of the ld. CIT (A) in the quantum appeal.