SHAFIQ AHMED,JAIPUR vs. INCOME TAX OFFICER, WARD 5(2) JAIPUR, JAIPUR

ORDER PER BENCH: Both these appeals have been filed by the assessee against two different orders of the ld. CIT(A) both dated 20-02-2023, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2011-12 in the matter of Section 271B and 271(1)(c) of the Act. 2.1 At the outset of the hearing of the appeal, the Bench noted that proxy Shri Ankur appearing on behalf of the assessee is not having power of attorney, therefore his presence cannot be marked. The Bench further noted that proxy Shri 2 SHAFIQ AHMED VS ITO, WARD 5(2), JAIPUR Ankur has filed applications in both the cases mentioning therein reason that the ld. Counsel Shri Vishal Goyal, CA who is to argue the above cases has some medical issues and he could not prepare the necessary submissions. From the records, the Bench observed that in both the cases the assessee was granted several opportunities but the assessee was neither present before the AO nor before the ld. CIT(A) in contesting both the cases which shows his lethargic behavior. Hence, the ld. CIT(A) passed ex-parte orders whereas the ld. DR present in the Court is ready to argue in both the cases. Thus the adjournment applications submitted by the proxy before the Bench are rejected and we have decided to proceed with the hearing of the case and the decision shall be made in view of the arguments of the ld. DR and the materials available on record. 2.2 During the course of hearing, the ld. DR relied upon the orders of the ld. CIT(A) in both the cases. 2.3 After hearing the ld. DR and perusing the materials available on record, the Bench observed that the assessee was really lethargic and unserious in pursuing his cases in spite of providing various opportunities by the ld. CIT(A) and the AO as mentioned in their orders. The relevant observation of the ld. CIT(A) for not providing documentary evidence by the assessee in the matter of Section 271B is as under:-

3 SHAFIQ AHMED VS ITO, WARD 5(2), JAIPUR ‘’5.4 It is pertinent to note that the appellant was issued various notices u/s 250 of the I.T. Act by the First Appellate Authority to make submissions and file documentary evidences in support of grounds of appeal but the appellant has not responded to these notices during appellate proceedings. The appellant has not produced the relevant details in support of its grounds of appeal during appellate proceedings and also did not submit any explanation for deletion of penalty u/s 271B of the I.T. Act. During the course of assessment proceedings, the AO treated the entire gross receipts (cash deposits) of Rs.97,99,665/- as the turnover of the appellant and calculated the profit @ 8%. Therefore, the AO initiated penalty proceedings u/s 271B of the I.T. Act as the appellant failed to get his accounts audited u/s 44AB of the I.T. Act.

5.5 The appellant has not been able to furnish any explanation for not imposing penalty u/s 271B of the I.T. Act either during the assessment proceedings or during the appellate proceedings. In view of the above facts, the penalty impose by the AO of Rs.48,998/- is hereby confirmed. Hence, this ground of appeal is dismissed.’’ Similar is the position of the assessee in appeal before the ld. CIT(A) u/s 271(1)(c ) wherein the ld. CIT(A) observed as under by dismissing the grounds of appeal of the assessee.

4 SHAFIQ AHMED VS ITO, WARD 5(2), JAIPUR ‘’5.4……….. The appellant has failed to furnish any explanation for not imposing penalty u/s 271(1)© of the I.T. Act either during the assessment proceedings or during the appellate proceedings. Further, the fifth ground of appeal raised by the appellant is regarding the addition made by the AO treating the deposits in banks as turnover of the appellant does not emanate from the penalty order. The ld. CIT(A), Jaipur has also confirmed the additions in quantum appeal. In view of the above facts, the penalty imposed by the AO of Rs.1,55,425/- is hereby confirmed. Hence, these grounds of appeal are dismissed.’’ From the above scenario, it is an undisputed fact that the assessee was granted several opportunities either by the ld. CIT(A) or by the AO to argue the cases but the assessee remained non-cooperative and negligent in pursuing his cases on the dates of hearing of the appeal for which the Bench awards cost of Rs.2,000/- on each appeal and the same may be deposited in the Prime Minister Relief Fund and copy of the same shall be submitted to the AO for proof and thus the appeals of the assessee u/s 271B and 271(1)( c) are restored to the file of the AO to decide them afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of assessment proceedings before the AO. Thus the appeals of the assessee are allowed for statistical purposes.