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Income Tax Appellate Tribunal, ‘D’ BENCH : CHENNAI
Before: SHRI N.R.S. GANESAN & SHRI A. MOHAN ALANKAMONY]
आदेश / O R D E R
PER N.R.S.GANESAN, JUDICIAL MEMBER
This appeal of the assessee is directed against the order of the Commissioner of Income-tax (Appeals), Salem, dated 30.12.2014 confirming the penalty levied by the Assessing Officer u/s 271(1)(c) of the Income-tax Act, 1961, for assessment year 2003-04.
Shri S. Sridhar, ld. Counsel for the assessee submitted that 2. the Assessing Officer levied penalty u/s 271(1)(c) of the Act in respect of the quantum addition made by the Assessing Officer. The assessee
ITA No.473/15 :- 2 -: has filed appeal before this Tribunal. This Tribunal by an order dated 26.7.2012 in I.T.A.No.637/Mds/2011 granted partial relief against which the assessee filed appeal before the Madras High Court and the same is pending for disposal. In the meantime, miscellaneous petitions were also filed before the CIT(A) and before this Tribunal in respect of the quantum addition. However, both the miscellaneous petitions filed were dismissed against which the assessee has filed appeals before the High Court. Both the appeals filed against the orders of this Tribunal in the appeal and the miscellaneous petition are pending for final disposal before the High Court. Therefore, according to the ld. Counsel, the matter is pending adjudication before the High Court in respect of the quantum addition made by the Assessing Officer. Referring to the penalty order, the ld. Counsel submitted that the addition was made on the basis of the statement said to be recorded from the assessee. According to the ld. Counsel, the statement was subsequently retracted. However, the Assessing Officer refused to accept the retracted statement. Referring to the order of the CIT(A), the ld. Counsel submitted that the CIT(A) dismissed the appeal of the assessee on the ground that none appeared before him. According to the ld. Counsel, an opportunity may be given to the assessee to file the relevant material in the penalty proceedings.
ITA No.473/15 :- 3 -:
On the contrary, Shri Lakshminarayanan, ld. Departmental Representative submitted that the addition made by the Assessing Officer was confirmed by this Tribunal and merely because the appeal field by the assessee against the order of this Tribunal is pending for disposal before the High Court cannot be a reason for deleting the penalty made by the Assessing Officer. Referring to the contention of the assessee that the CIT(A) has not disposed of the appeal on merit and therefore, an opportunity may be given to the assessee, the ld. DR submitted that if the Tribunal feels that an opportunity needs to be given to the assessee, he may not have any serious objection for remitting the matter back to the file of the CIT(A).
We have considered the rival submissions on either side and also perused the material available on record. The CIT(A), after referring to the pendency of the appeal before the High Court against the quantum addition and the order passed by this Tribunal in miscellaneous petition found that none appeared before him whenever the appeal was posted for hearing. From the order of the CIT(A) it appears that the appeal was posted on eight days. On all the eight days none appeared before him. Therefore, the CIT(A) found that the assessee is not interested in prosecuting the appeal. This Tribunal is of the considered opinion that the powers of the CIT(A) are coterminous with the Assessing Officer. Therefore, merely because
ITA No.473/15 :- 4 -: the assessee has not appeared before the CIT(A) that cannot be a reason to confirm the penalty levied by the Assessing Officer u/s 271(1)(c) of the Act. The penalty proceeding is independent and separate proceeding, therefore, the CIT(A) has to reappreciate the material available on record in the penalty proceeding. The impugned order of the CIT(A) does not indicate any reappreciation of the material available on record. Therefore, this Tribunal is of the considered opinion that the matter needs to be reconsidered by the CIT(A). Accordingly, the orders of the lower authorities are set aside and the issue of penalty u/s 271(1)(c) of the Act is remitted back to the file of the CIT(A). The CIT(A) shall reconsider the issue afresh in the light of the material available on record and decide the same in accordance with law after giving a reasonable opportunity to the assessee.
In the result, the appeal of the assessee is allowed for 5. statistical purposes. Order pronounced in the open court on 23rd June, 2016, at Chennai.