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Income Tax Appellate Tribunal, “C”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI RAM LAL NEGI, JM Shri Chirag J Mehta
आदेश / O R D E R PER R.C.SHARMA (A.M): This is an appeal filed by the assessee against the ex-parte order of CIT(A) dated 16/02/2015 for the Assessment Year 2010-11, in the matter of penalty imposed u/s.271 (1)(c) of the IT Act. 2. It was vehemently argued by learned AR Shri Shashank Dundu that sufficient and reasonable opportunity was not granted to the assessee by CIT(A) and assessee was deprived of an opportunity of being heard by ignoring the fact that authorized representative on the date given by CIT(A) had applied for an adjournment. Under these facts and circumstances it was argued that CIT(A) was not justified in passing ex-parte order.
Shri Chirag J Mehta 3. Our attention was also invited to the Affidavit filed by the assessee to substantiate its contention for not appearing before the CIT(A) on the date fixed for hearing which reads as under:- “I Chirag J Mehta aged about 36 years an adult Indian Inhabitant, residing at 103/A, Nadia Apartment, 10th Road, Santacruz(E), Mumbai-400055 do here by state on solemnly affirmation as under:
1. 1. I say that I am proprietor of Navpad chemicals and my PAN no is AGKPM6888Q.
2. I say that, I had filed appeal before CIT(A) - 34 on 111112014 against penalty order uls 271(1)(c) dtd 30/9/2013 for AY 2010- 2011 3. I say that I had appointed CA Ashwin Jain and M.L.Sharma & Co to represent my case before CIT(A).
4. I say that I had received notice of hearing dtd 30.10.2014 fixing date of hearing on 24.11.2014 on 5.11.2014.
5. I say that on 24.11.2014 Shri S.M.Bandi, partner of M.L.Sharma & Co had filed adjournment letter on said date.
6. I say that I had received notice of hearing dtd 11.12.2014 fixing date of hearing on 22.12.2014 on 12.12.2014. 7.I say that on 22.12.2014 Shri S.M.Bandi, partner of M.L.Sharma & Co had filed adjournment letter on said date.
8. I say that I had received notice of hearing dtd 6/2/2015 fixing date of hearing on 13.12.2015 on 10.12.2015 stating final opportunity.
9. I say that on 13.2.2015 Shri V.J.Bajaj, partner of M.L.Sharma & Co had filed adjournment letter on the ground that Shri S.M.Bandi was out of Mumbai and returning on 16.2.2015. I say that it was further stated that as CA Ashwin Jain was on leave for his marriage, the matter may be adjourned to 28.2.2015.
10. I say that I was under a bonafide belief that the appeal was adjourned. I say that the Ld CIT(A) never communicated to me that the letter of authority was not filed.
Shri Chirag J Mehta 11. I say that I received ex-parte order of CIT(A) dtd 16.2.2015 on 7.3.2015 12. I say that I immediately approached the Hon'ble ITAT and filed appeal on 27.3.2015. I say that I am ready and willing to pursue my matter and one more opportunity may be afforded to me. 13. I say that the above stated facts are true and correct to best of my own knowledge and I am making this affidavit to bring the true facts on record.”
With regard to the merit of penalty so imposed, contention of Mr. Dundu was that AO has accepted the sale made by assessee but the corresponding purchases were not accepted. As per learned AR, there is a quantitative tally of purchases and sales and merely because bills were taken from different supplier, the purchases so made cannot be treated as bogus. Accordingly, imposition of penalty with reference to rejecting the purchases was not justified. Learned AR also invited our attention to the profit rate declared by the assessee so as to substantiate that assessee has neither concealed nor furnished any particulars of income.
On the other hand learned CIT DR relied on the order of the lower authorities. 6. We have considered rival contentions and carefully gone through the orders of the authorities below and found from record that penalty was imposed with respect to the purchases not accepted by the AO as genuine. The assessee filed appeal against the penalty order on 01/11/2013, well within the statutory time limit. We found that assessee has appointed Shri Ashwin Jain CA and Mr. M.L.Sharma & Co to represent his case before the CIT(A).