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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’ NEW DELHI
Before: SMT DIVA SINGH & SH.PRASHANT MAHARISHI
Date of Hearing 16.03.2016 Date of Pronouncement 03.05.2016 ORDER PER DIVA SINGH, JM Both these appeals are being decided by a common order for the sake of convenience as facts and circumstances remain identical. The present appeals have been filed by the assessee assailing the separate orders dated 04.11.2015 of CIT(A)-23, New Delhi pertaining to 2011–12 assessment year wherein the penalties imposed under section 271(1)(b) and 271(1)(c) have been upheld. The grounds raised in both appeals are identical. For ready reference, Grounds in are reproduced hereunder:-
“The order passed by Ld. CIT(Appeals) is bad in law as well as on facts.
Under the facts and circumstances of the case Hon’ble CIT(A)-23, New Delhi has erred in ex-parte confirming penalty order dt.
I.T.A .No.-349 & 350/Del/2016 29.09.2014 for Rs.10,000/- passed u/s 271(1)(b) of the I.T.Act by the Asst. Commissioner of Income Tax, Central Circle-12, New Delhi.
3. Under the facts and circumstances of the case CIT(A)-23, New Delhi has erred in ignoring the adjournment request of the appellant legal counsel due to his ill health. CIT(A) not only ignored the appellant request but also failed to consider the Doctor certificate enclosed with the letter. Worthy CIT(A) even didn’t pass the speaking order covering the grounds of appeal
raised by the appellant and appreciation of material available on record.
4. Under the facts and circumstances of the case Hon’ble CIT(A) has erred in confirming penalty order ignoring the facts that notice for assessment proceedings have not been duly served on the appellant due to change of address of the appellant for his ill health.
5. The appellant craves leave add to or amend any ground of appeal at any time.”
2. No one was present on behalf the assessee at the time of hearing. A perusal of the impugned order shows that before the CIT(A) also the assessee remain unrepresented. The record shows that the Ld. CIT(A) gave three opportunities thereafter the appeal was transferred by an administrative order to the present CIT(A) who passed the order after giving 2 opportunities. The assessee consistently moved adjournments however, effective compliance despite opportunity was not made leading to the circumstance where both the appeals were dismissed holding as under:-
3.3. “Under these circumstances it is apparent that the appellant is not interested in pursuing its appeal. The appeal is therefore dismissed.”
The assessee is still aggrieved. On considering the impugned order, we find that the aforesaid decision of the Ld.CIT(A) is not in accordance with the statutory mandate of section 250(6) which mandates that the CIT(A) shall pass a speaking order, the specific sub-section is reproduced hereunder for ready-reference:- 250. “(1) …………………………………………. (2) …………………………………………………
I.T.A .No.-349 & 350/Del/2016 (3) ………………………………………………… (4) …………………………………………………. (5) …………………………………………………. (6) The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision. (6A)...................................................................”
The specific provision requires the First Appellate Authority to set out points for determination and the decision thereon supported by reasons for arriving at a conclusion. The said mandatory exercise in the aforesaid provision in the peculiar facts of the present case is found to be not fulfilled. Accordingly holding the impugned order violative of the statutory mandate they are set aside back to the file of the CIT(A) to make good the statutory deficit. Needless to say that before passing the order, a reasonable opportunity shall be provided to the assessee. While so directing it is hoped that the opportunity so provided is not abused by the assessee and is utilized in good faith as failing which the Ld. CIT(A) would be at liberty to pass a speaking order in accordance with law on the basis of material available on record.
In the result the appeals filed by the assessee are allowed for statistical purposes.
The order is pronounced in the open court on 03 of May, 2016.