DAYAMAYEE MARBLE & GRANITE,HOOGHLY vs. ITO, WD-2(1), HOOGHLY, HOOGHLY

This is an appeal filed by the assessee against the order of Ld. CIT(A)-6, Kolkata dated 30.12.2014 for AY 2010-11 against the penalty levied u/s. 271(1)(b) of the Act.

At the outset, it was pointed out by Ld. Counsel for the assessee that the impugned order is an ex parte order passed by the Ld. CIT(A) without giving sufficient opportunity to the assessee. The Ld. A. R also brought to our notice that the notice initiating u/s. 271 (1 )(b) of the Income-tax Act, 1961 (hereinafter referred to as the “Act” ) did not spell out as to the fault and that too on which dates omission on the part of the assessee to comply with the notice constitutes the fault which prompted the issuance of notice u/s. 271 (1) (b) of the Act. According to him, as per the order of the Hon’ble Karnataka High Court in CIT vs Manjunatha Cotton and Ginning Factory reported in (2013) 359 ITR 565 (Kar) and CIT Vs. S S A’s Emerald Meadows, reported in (2016) 73 taxmann. com 241 (Kar), which has been approved by the Hon’ble Supreme Court, the notice initiating penalty has to spell out clearly the default for which the assessee is being proceeded against before imposing the penalty. In this case, the default as to which date the assessee’s non compliance of 142(1) notice has not been specified, so, notice itself is bad in law and, therefore, consequent penalty is bad in law. However, we are not inclined to pass any orders on merit of the aforesaid contention of the Ld. AR. Since the impugned order is an ex parte order, we are of the considered opinion that the assessee should plead the same if he is so advised and other defence before the Ld. CIT(A) and the Ld. CIT(A) has to pass speaking order on merit. Therefore, we are inclined to set aside the order of the Ld. CIT(A) and remit the matter back to the file of the Ld. CIT(A) to decide the appeal on merits. With the aforesaid observation the appeal of assessee is allowed for statistical purposes.

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