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Order under Section 254(1) of Income Tax Act PER PAWAN SINGH JUDICIAL MEMBER, 1. These two appeals by assessee u/s. 253 of the Income-tax Act are directed against the two separate orders of Commissioner of Income-tax (Appeals)-30, dated 31st January 2012, dismissing the assessee’s appeal contesting the levy of penalty u/s. 271D. In both the appeals, the assessee has raised identical grounds of appeal, thus both the appeals were heard together and are decided by common order. First we are taking appeal for Assessment Year (AY) 2006-07 being . The assessee has raised following grounds of appeal:
(i) “On the facts and in the circumstances of the case and in law, the penalty order passed under section 271D is invalid and bad in law. (ii) On the facts and in the circumstances of the case and in law the ld. CIT(A) erred in dismissing the appeal and confirming the penalty of Rs. 6,60,000/-levied u/s. 271D and that too without giving full and proper opportunity of being heard in the matter. (iii) On the facts and in the circumstances of the case and in law, ld. CIT(A) erred in dismissing the appeal and confirming the penalty of Rs. 6,60,000/-levied u/s. 271D and that too without appreciating fully and properly the facts of the case.
The brief facts of the case are that assessee filed return of income for relevant AY on 31st October 2007 declaring total income of Rs. 5,40,400/-. The assessment was completed u/s 143(3) assessing the income of assessee at Rs. 4,54,559/-. During the course of assessment proceeding, the AO observed that assessee had received loan of Rs. 6,60,000/- in cash from Shri Asad Siddiqui. As loan was issued in cash the AO issued show cause notice as to why provision of section 269SS should not be invoked in respect of loan taken from Asad Siddiqui. The assessee contested the notice by filing reply. The reply filed by assessee was not accepted by AO and after hearing the assessee, the penalty of Rs. 6,60,000/- u/s 271D was levied. On appeal before CIT(A), the order of penalty was upheld. Thus, further aggrieved by the order of ld. CIT(A), the present appeal is filed before us.
We have heard ld. AR for assessee and ld. DR for revenue and perused the material available on record. The ld. AR of the assessee argued that the assessee was not given fair and proper opportunity by ld. CIT(A). It was further argued that during the appellate proceeding, the assessee filed certain documentary evidence to substantiate his defense. However, the ld. CIT(A) neither considered the evidence filed on record nor given opportunities to make submissions and rejected the contention raised before him. On the other hand, the ld. DR for the revenue argued that the assessee was given sufficient and fair opportunity before levying the penalty. The ld. CIT(A) after considering the contention of assessee rejected the evidence filed before him.
We have considered the rival contention of the parties and gone through the order of authorities below. We have noticed that before Ld Commissioner (Appeals) the assessee has filed certain sales bill along with the extract of sales register in support of his claim, claiming that the amount in cash was given as an advance. The ld. CIT(A) not admitted the documentary evidence filed before him. The ld CIT(A) vide para 3.6 of his order rejected the admission fresh evidence. Considering the contention of the ld AR for the assessee that the assessee was not given full opportunity, we admit the documentary evidence filed by the assessee. After admitting the evidences of assessee before us, we deem it appropriate to restore the case to the file of ld. CIT(A) to re-consider the said evidence placed on record. Needless to say that while considering the evidence, the ld. CIT(A) shall provide fair and proper opportunity to represent the assessee. With these observations, the appeal of the assessee is allowed for statical purpose.