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Income Tax Appellate Tribunal, DELHI BENCH “D” NEW DELHI
Before: SHRI I.C. SUDHIR & SHRI L.P. SAHU
ORDER
PER I.C. SUDHIR: JUDICIAL MEMBER The assessee has questioned sustaining of additions by the Learned CIT(Appeals) on the following grounds:
Grounds in ITA 6752:
1. That in the facts and circumstances of the case and in law the order passed by the Learned CIT(Appeals)-XVII, New Delhi hereinafter referred as “CIT(A)”, being perverse, self contradictory and against the provisions of Income-tax Act, 1961, Act, and void-ab-initio and hence is liable to set aside.
2. That in the facts and circumstances of the case and in law the Learned CIT(Appeals) upholding assessment order admittedly assessing income in the hands of Minor by invoking provisions of section 64(1A) of Act in self contradiction of declining contentin of 2 appellant of having earned income out of her skill, is contrary to provisions of Act.
3. That in the facts and circumstances of the case and in law the Learned CIT(Appeals) erred in upholding the action of learned Assessing Officer of passing assessment order under sec. 144 of Act by giving go bye to the contentions raised by appellant and order passed by Learned CIT(Appeals) quashing penalty levied under sec. 271(1)(b) of Act.
4. That in the facts and circumstances of the case and in law the Learned CIT(Appeals) erred in not accepting explanation for the source of credit/peak credit in the bank account and rejected explanation on extraneous reasons.
In other appeal i.e. the assessee has questioned sustaining of penalty levied under section 271(1)(c) of the Act on the following grounds:
1. That in the facts and circumstances of the case and in law the order passed by the Learned CIT(Appeals)-XVII, New Delhi hereinafter referred as “CIT(A)”, upholding levying of penalty under sec. 271(1)(c) is bad in law and void-ab-initio.
2. That in the facts and circumstances of the case and in law the Learned CIT(Appeals) erred in upholding penalty based upon assessment order, on a minor, passed under sec. 144 of Act which itself is non-est.
3 3. That in the facts and circumstances of the case and in law the Learned CIT(Appeals) erred in upholding order levying penalty under sec. 271(1)(c) of Act in absence of filing of return of income u/s. 139(1) OF Act because appellant was statutorily not required to file her return of income.
4. That in the facts and circumstances of the case and in law the Learned CIT(Appeals) ignored the fact that pre-requisite of levying penalty order under sec. 271(1)(c) of Act were not fulfilled by Ld. Assessing Officer.
5. That in the facts and circumstances of the case and in law the Learned CIT(Appeals) erred in upholding order levying penalty under sec. 271(1)(c) of Act for concealment of income or furnishing of inaccurate particulars based on dismissal of appeal filed by appellant against order passed under sec. 144 of Act.
6. That in the facts and circumstances of the case and in law the Learned CIT(Appeals) erred in upholding levy of penalty order in contravention to settle principles of natural justice.
In the above appeals, the appellant-assessee has raised two basic issues besides questioning the first appellate order on several grounds as reproduced hereinabove. These basic issues are violation of principles of natural justice by the Assessing Officer in framing the assessment under section 144 of the Act and framing of the said assessment against the 4 assessee who was minor during the previous year relevant for the assessment year under consideration.
So far as issue of violation of principles of natural justice by the Assessing Officer in framing the assessment under sec. 144 of the Act is concerned, the contention of the Learned AR remained that before the Learned CIT(Appeals), the assessee had contended that the assessment order passed under sec. 144 of the Act is liable to be quashed as the same has been passed in contravention to the principles of natural justice because the order has been passed without serving the requisite notice on the assessee. In support, an affidavit of Shri Ashok K. Chopra, uncle of the assessee regarding non-receipt of any notices issued under sec. 142(1) of the Income- tax Act, 1961 for the assessment year in question was furnished. It was further explained that only on receipt of the assessment order by Mr. Ashok K. Chopra on 04.01.2008, the assessee came to know that in the said order the Assessing Officer had claimed issuance of notice under sec. 142(1) of the Act and service thereof on the assessee by speed post on the last available address on record.
The Learned AR contended before us that in the assessment order no where it has been mentioned as to when the claimed first notice under sec.
5 142(1) of the Act was issued through the speed post on the last available address of the assessee on their record. The Assessing Officer while mentioning the issuance of another notice again has not mentioned the reference of the postal receipt through which it was claimed to have been issued on 06.12.2007 for 14.12.2007. The Learned AR pointed out that on this contention of non-service of notice before the Learned CIT(Appeals), the Learned CIT(Appeals) has called for remand report from the Assessing Officer. In the remand report, reproduced at page No. 8 of the first appellate order, the Assessing Officer again has not specified as to when notices under sec. 142(1) were issued to the assessee and what was the receipt number issued by the postal department through which those notices were posted. Ignoring the same, the Learned CIT(Appeals) has rejected the ground of the first appeal questioning the validity of assessment order in absence of service of notices to the assessee.
The Learned Senior DR on the other hand placed reliance on the orders of the authorities below that the Assessing Officer has mentioned the dates of the notices issued to the assessee and when there was no response, the Assessing Officer was having no option but to proceed for framing the assessment ex parte under sec. 144 of the Act.