What did the Tribunal hold?

The Tribunal found that the assessee was non-cooperative before the revenue authorities. However, in the interest of justice, the issue was remitted back to the AO for re-examination.

The assessee appealed against a penalty order sustained by the CIT(A). The assessee contended that they did not receive the notice in time and that notices sent to the address in Form 35 were complied with.

What were the issues?

Whether the penalty was sustainable given the assessee's claim of non-receipt of notice and compliance with notices sent to the Form 35 address.

M/S. Mirth Capital & Finlease… vs ITO | ITAT Delhi 2015

Before: SHRI H.S. SIDHU

Date of Hearing : 29-10--2015 Date of Order : 29-10-2015

O R D E R This appeal by the Assessee is directed against the Order of the Ld. Commissioner of Income Tax (Appeals)-IX, New Delhi pertaining to assessment year 2003-04.

The grounds of appeal read as under:-

1. Because, the order of the Ld. Lower authority is bad in law and against the facts and circumstances of the case and hence is unsustainable.

2. Because, Ld. CIT(A) erred in sustaining the penalty order by recording an incorrect finding that, assessee has not explained how he was prevented with sufficient cause to comply notice, while assessee duly explained that notice under question dated 18.11.2010 for 3011.2010 was not received before the date,

hence the order passed is illegal and against the material on record. 3. Because, Ld. CIT(A) further erred in recording an incorrect finding that notice sent on the address at Form 35 are not complied while whenever a notice issued on the address given in Form 35 for sending notice the same is duly complied, hence order is arbitrary. 3. The facts narrated by the revenue authorities are not disputed by both the parties, therefore, the same are not repeated here for the sake of convenience.

Ld. Counsel for the Assessee has reiterated the contention raised in the grounds of appeal and stated that the orders of the revenue authorities are bad in law and are not sustainable, hence, the penalty in dispute may be deleted.

On the contrary, Ld. DR has relied upon the orders of the authorities below and requested to dismiss the Appeal of the Assessee.

I have heard both the parties on the issue in dispute and perused the relevant records, especially the orders passed by the revenue authorities. I am of the view that the Assessee remained non-cooperative before the AO as well as before the Ld. CIT(A). No doubt that the assessee has filed some Written Submission before the Ld. CIT(A) and requested that the case may be decided according to its Written Submission and the Ld. CIT(A) has dismissed the Appeal of the Assessee by upholding the penalty in dispute. In my view, the assessee is not entitled for any lenient view for cancellation of penalty in dispute by this Bench. However, in the interest of justice, I am of the view that as requested by the Assessee, the issue in dispute requires re-examination at the level of the AO with the directions to decide the same afresh, under the law, after giving adequate opportunity of being heard to the assessee. As I have already stated above that the assessee remained non- cooperative before the Revenue authorities, therefore, I direct the Assessee through his Counsel Sh. Akhilesh Kumar, Advocate to appear before the AO on 10.12.2015 to represent the case before the AO. It is made clear that AO will not issue any notice to the assessee for 10.12.2015. Shri Akhilesh Kumar, Advocate agreed to appear before the AO on 10.12.2015 to represent the case of the Assessee and undertake to cooperate before the AO in the penalty proceedings for the speedy disposal of the matter.

In the result, the appeal filed by the assessee stands allowed for statistical purposes. Order pronounced in the Open Court on 29/10/2015.

M/S. MIRTH CAPITAL & FINLEASE LTD.,GHAZIABAD vs. ITO, NEW DELHI

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