BABLU JITENDRA HALDAR,MUMBAI vs. DCIT RG 23(2), MUMBAI

The present appeal is filed by assessee against the order of CIT(A) dated 12 November 2014,challenging the validity of confirmation of penalty order under section 271(1)(c ) of the Act, in respect of AY- 2011-

The brief facts of the case are that, the assessee was subjected to survey on 21 Jan 2011, under section 133A of the Act, at his business premises. During survey, the assessee made a declaration of additional income of Rs. 50 lakhs. The assessee has futher shown total receipt

AO issued show cause notice dated 20 March 2013, to the assessee for his explanation. No reply or explanation was filed by assessee against the show cause notice. AO concluded that the disclosure made by the assessee of Rs. 50 lacs during the action cannot be treated as voluntary. If there was no survey action the assessee would have not disclose the additional income. No appeal against the quantum assessment was filed by the assessee before CIT(A). Since there was no response from the assessee against the show cause notice, AO passed an order under section 271(1)(c) of the Act. The AO calculated/ work out minimum penalty @100% at Rs.15,99,590, and maximum penalty @300% at Rs.47,98770/- of the amount on which tax sought to be evaded and thus levied the penalty of Rs. 17,00,000/-, on the basis of assessed income and concealed income in its order dated 24th of September 2013. 4. Aggrieved by the order of penalty, assessee filed appeal before the CIT(A). The appeal was filed beyond 35 days of the prescribed period of limitation. Along with the appeal assessee filed an application for condonation of delay, for condoning the delay of 35 days. The delay was condoned by CIT(A). However for representing appeal, none appeared before the CIT(A), despite service of notice for three consecutive dates and finally on 7 October 2014. As none appeared during the appellate proceedings to disprove or rebut the order of AO. Ld CIT(A) and after discussing the fact of the case on the basis of material available on record dismissed the appeal of assessee vide impugned order against which the present appeal is filed before us.

We have heard ld AR of assessee and DR for revenue and peruse the material available on record. Ld AR of the assessee argued that assessee was sick during the relevant period and had suffered a heart attack and was admitted in hospital in the Ahmadabad. After that assessee was not keeping well and shifted to his native place in West Bengal. In his absence the notices were received by his neighbor and due to lack of communication he could not appear before CIT(A) which resulted in to ex-party order. The assessee filed his affidavit dated 20th March 2015, in support of his contention.

We have noticed that the assessee did not appear to represent his case even before AO during the penalty proceeding. The assessee preferred appeal before CIT appeal but despite repeated notice, assessee not appeared before appellate authority. Now the assessee filed his affidavit showing the cause of nonappearance in the appeal proceedings. In the affidavit the assessee disclosed that he was sick and could not appear before CIT(A). Though the affidavit does not disclose as to when the assessee suffered a heart attack was admitted in hospital in Ahmadabad or when shifted to his native place in West Bengal. No documentary evidence in support of averments made in affidavit is filed on record. However keeping in view the Principle of Natural Justice, we deem it appropriate to restore the case to the file of CIT appeal for disposal of the case on merit. The CIT appeal is directed to provide adequate and fair opportunity to the assessee. The assessee is also directed to fully cooperate during the proceedings before CIT appeal and not to seek adjournment without any reasonable excuse.

With this observation the appeal of assessee is allowed for statistical purpose.

""यथ"/ The Respondent. 3. आयकरआयु"त)अपील (/ The CIT(A), Mumbai. 4. आयकरआयु"त/ CIT आदेशानुसार/BY ORDER,

"वभागीय""त"न"ध ,आयकरअपील"यअ"धकरण ,मुंबई/ DR, ITAT, Mumbai 6. गाड"फाईल / Guard file. स"या"पत""त /// उप/सहायकपंजीकार (Asstt.