LAXMIBAI RAMBHAU PATHARE,PUNE vs. ITO, WARD 7(3), PUNE, PUNE

Although a number of grounds have been raised by the assessee, however, these all relate to the ex-parte order of the CIT(A) / NFAC in confirming the penalty of Rs.1,10,63,435/- levied by the Assessing Officer u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).

The Ld. Counsel for the assessee at the outset submitted that the assessment in this case was completed u/s 147 r.w.s. 144 r.w.s. 144B of the Act determining the total income of the assessee at Rs.3,39,63,669/-. Subsequently, the Assessing Officer levied penalty of Rs.1,10,63,435/- u/s 271(1)(c) of the Act being 100% of the tax sought to be evaded. He submitted that the quantum appeal is still pending before the CIT(A) / NFAC. In the meantime, the CIT(A) / NFAC in the ex-parte order passed by him confirmed the penalty so levied by the Assessing Officer. He accordingly submitted that he has no objection if the matter is remitted back to the file of the CIT(A) / NFAC for adjudication of the issue afresh after the quantum appeal is decided.

The Ld. DR fairly conceded that the quantum appeal is still pending before the CIT(A) / NFAC.

After hearing both the sides, we find the Assessing Officer in the order passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act has determined the total income of the assessee at Rs.3,39,63,669/- and the quantum appeal is still pending before the CIT(A) / NFAC. Since despite number of opportunities granted, the assessee did not file any reply, the CIT(A) / NFAC in the ex-parte order passed by him sustained the penalty so levied by the Assessing Officer. Since the quantum appeal is still pending before the CIT(A) / NFAC, therefore, considering the totality of the facts of the case, we deem it proper to restore the issue back to the file of the CIT(A) / NFAC with a direction to decide the appeal after the quantum appeal is decided. While doing so, he shall give due opportunity of being heard to the assessee. The assessee is also hereby directed to participate in the appellate proceedings on the appointed date without seeking any adjournment under any pretext, failing which the CIT(A) / NFAC is at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.

In the result, the appeal filed by the assessee is allowed for statistical purposes.