ASHOK P. SHAH,MUMBAI vs. ITO 14(2)(1), MUMBAI

आदेश / O R D E R PER R.C.SHARMA (A.M): This is an appeal filed by the assessee against the order of CIT(A) for the assessment year 2008-09 in the matter of imposition of penalty u/s.271(1)(C) of the IT Act. 2. At the outset, learned AR placed on record the order of the Tribunal in quantum appeal wherein addition has been restored to the file of CIT(A) for considering afresh. Accordingly, it was argued that order of penalty should also be restored back to the file of the CIT(A). 3. We have gone through the order of Tribunal in quantum appeal No.6828/Mum/2011 dated 19/01/2016 wherein addition made on account of unexplained investment was restored back to the file of CIT(A) after having the following observation:-

2 Shri Ashok P. Shah 5. After considering the aforesaid submission made by the parties and the observations made in the impugned order, qua passing the ex-parte order and opportunity of hearing given to the assessee at the stage of first appellate proceedings, it is noted that Ld. CIT(A) has given four opportunities of hearing to the assessee starting from 25.07.2011 to 08.09.2011. The assessee’s request before the CIT(A) was to give reasonable time so as to compile the details and documents to in support of its case. It appears that the Ld. CIT(A) within a gap of 1½ months (one and half months) has adjourned the matter four times. At least some reasonable opportunity of a longer period should have been given in the interest of natural justice. However, we find the conduct of the assessee too was not justified as he did not even appear on the dates specified for hearing by the CIT(A). At least assessee should have made request by filing an adjournment letter or appearing in person explaining the entire facts and circumstances. Accordingly, in the interest of substantial justice, we feel that the entire matter should be restored back to the file of the CIT(A) so that the impugned issue which has been raised before him and also before us can be decided on merits in accordance with the provisions of the law. Thus, we remit the matter to the file of the CIT(A) to decide all the issues raised before him afresh after giving due opportunity to the assessee and also decide the same in accordance with the law. The assessee is also directed to co- operate with the CIT(A) and represent its case on the given dates, as it has been submitted by the Ld. Counsel that now all the details are available on record. Thus, the grounds raised by the assessee are treated as allowed for statistical purposes.

4. In view of the quantum order decided by the Tribunal wherein the matter has been restored back to the file of CIT(A), we restore penalty appeal also to the file of CIT(A) for deciding afresh after deciding the quantum. We direct accordingly.

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