EXCEL INFRACON PVT. LTD.,DELHI vs. DCIT, CENTRAL CIRCLE, KARNAL

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ITA 3362/DEL/2018Status: DisposedITAT Delhi19 July 2021AY 2006-075 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal restored the issue to the file of the CIT(A) to grant one final opportunity to the assessee to substantiate its claim. The assessee is directed to appear and present its case without seeking adjournments.

What were the facts?

During a search, the assessee filed a letter stating its earlier return should be treated as filed in response to a notice. The Assessing Officer made an addition of Rs. 3,50,00,000 under Section 68 as unexplained share capital and premium. Subsequently, penalty proceedings were initiated under Section 271(1)(c).

What were the issues?

Whether the penalty levied under Section 271(1)(c) is justified, considering the assessee's failure to appear before the lower appellate authority and substantiate its claims.

Which sections of the Income-tax Act were involved?

Section 132(1)(A),Section 153A,Section 153A(1)(b),Section 68,Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCHES “B” : DELHI

Before: SHRI R.K. PANDA & SHRI AMIT SHUKLA

Hearing: 19.07.2021Pronounced: 19.07.2021

ORDER PER R.K. PANDA, A.M. This appeal filed by the Assessee is directed against the Order dated 28.02.2018 of the Ld. CIT(A)-3, Gurgaon, relevant to the A.Y. 2006-2007.

2.

Although a number of grounds have been raised by the assessee, however, these all relate to the ex-parte

1.

2 ITA.No.3362/Del./2018 M/s. Excel Infracon Pvt. Ltd., Delhi. order of the Ld. CIT(A) in confirming the penalty of Rs.1,17,81,000/- levied by the A.O. under section 271(1)(c) of the I.T. Act, 1961.

3.

Despite service of notice, none appeared on behalf of the assessee. Therefore, this appeal is being decided on the basis of the material available on record and after hearing the Ld. D.R.

4.

The facts, in brief, are that a search under section 132(1)(A) of the I.T. Act was carried-on at the business as well as residential premises of M/s. Best Food Group of Cases, Karnal on 23.11.2010. In response to notice under section 153A of the I.T. Act, the assessee filed a letter dated 17.09.2012 stating therein that the return filed by it on 30.03.2007 be treated as return filed in response to notice under section 153A of the I.T. Act. The A.O. on the basis of various submissions filed by the assessee from time to time, completed the assessment under section 153A(1)(b) of the I.T. Act, 1961, determining the total income of the assessee at Rs.3,50,00,000/- wherein he made addition of the said amount under section 3 ITA.No.3362/Del./2018 M/s. Excel Infracon Pvt. Ltd., Delhi. 68 of the I.T. Act, 1961, as unexplained share capital and share premium.

5.

In appeal, the Ld. CIT(A) confirmed the addition made by the A.O. Subsequently, the A.O. initiated penalty proceedings under section 271(1)(c) of the I.T. Act rejecting the various explanations given by the assessee. The A.O. levied the penalty of Rs.1,17,81,000/- being 100% of the tax sought to be evaded. Since the assessee did not appear before the Ld. CIT(A), the Ld. CIT(A) passed the ex-parte Order, in the absence of any submissions filed by the assessee during the entire appellate proceedings.

6.

We have heard the Ld. D.R. and perused the record. The A.O. in the instant case has levied the penalty of Rs.1,17,81,000/- under section under section 271(1)(c) of the I.T. Act, 1961 on account of addition of Rs.3,50,00,000/- under section 68 of the I.T. Act, 1961. We find the Ld. CIT(A) upheld the penalty levied by the A.O. in the absence of any details filed by the assessee during the entire appellate proceedings except letter of adjournment on 18.08.2017. A perusal of the order of the Ld. CIT(A) shows

4 ITA.No.3362/Del./2018 M/s. Excel Infracon Pvt. Ltd., Delhi. that he had given 04 opportunities to the assessee and the assessee had sought adjournments on one occasion, but, did not appear on the other dates for which the Ld. CIT(A) was constrained to pass the ex-parte order wherein he has confirmed the penalty so levied by the A.O. Considering the totality of the facts and circumstances of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Ld. CIT(A) with a direction to grant one final opportunity to the assessee to substantiate its claim and decide the issue as per fact and Law. The assessee is also hereby directed to appear before the Ld. CIT(A) and substantiate its case without seeking any adjournment under any pretext, failing which, the Ld. CIT(A) is at liberty to pass appropriate order as per Law. The grounds raised by the assessee are accordingly allowed for statistical purposes.

7.

In the result, appeal of the Assessee is allowed for statistical purposes.

5 ITA.No.3362/Del./2018 M/s. Excel Infracon Pvt. Ltd., Delhi. Order pronounced in the open Court at the time of hearing itself i.e., on 19.07.2021.

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