SHRI MAHADEVBHAI MADHAVJIBHAI GAMI,MORBI vs. THE ITO, WARD-3, MORBI, MORBI

The instant appeal at the instance of the assessee is directed against the order dated 10.03.2023 passed by the National Faceless Appeal Centre (NFAC), Delhi, arising out of the penalty order dated 15.09.2016 passed by the ITO, (Shri Mahadevbhai M. Gami vs. ITO) A. Y. 2008-09 - 2- Ward-3, Morbi under Section 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) for Assessment Year 2008-09, whereby and whereunder the penalty imposed by the Ld. AO to the tune of Rs.1,50,640/- under Section 271(1)(c) of the Act on account of furnishing inaccurate particulars of income and concealing the income against the assessee has been upheld.

The Ld. CIT(A), NFAC uphold the penalty on the ground that in spite of several notices, the assessee did not furnish any petition neither sought for adjournment before him. The said order was passed not on merit but only on the count that the assessee is not interested in prosecuting the appeal.

At the time of hearing of the matter, Ld. Counsel appearing for the assessee drew our attention to various dates fixed for hearing of the appeal by the NFAC as tabulated in paragraph No.5.2 of the order impugned wherein further observation was made by the NFAC that no details were furnished by the appellant neither any adjournment petition was received. On the other hand, it is the categorical statement made by the Ld. AR that he duly filed written submissions in the form of paper book during physical hearing before the Jurisdictional CIT(A). Hence, the ex parte order, with the observation that the assessee was not interested in pursuing the appeal, is not correct and therefore, decision on that basis is liable to be quashed. Under these circumstances, the Ld. Counsel for the assessee prays for further opportunity of being heard to assessee to represent his case before the Ld. CIT(A). The prayer made by the Ld. AR has not been controverted by the Ld. DR with all his fairness.

Having heard the Ld. Counsel appearing for the parties and having regard to the facts and circumstances of the case and upon perusal of the relevant materials available before us, we do not find any reason to pass an ex parte order (Shri Mahadevbhai M. Gami vs. ITO) A. Y. 2008-09 - 3- by the Ld. CIT(A) in this manner particularly when the written notes of submission was duly filed by the assessee before the Jurisdictional CIT(A). The impugned order, thus, suffers from irregularities in not considering such written notes of submission filed by the assessee and to dispose of the appeal ex parte that too not on merit. We, therefore, in order to prevent miscarriage of justice, set aside the issue to the file of the Ld. CIT(A), NFAC, Delhi for re-consideration of the same taking into account the written notes of submission already filed by the appellant before the Jurisdictional CIT(A) or any other evidence which the appellant may choose to file during the appellate proceeding before the said Ld. CIT(A), NFAC, Delhi. We also make it clear that, in the event the appellant does not cooperate with the concerned CIT(A), the said authority would be at liberty to proceed with the matter and finalize the same strictly in accordance with the law.

In the result, assessee’s appeal is allowed for statistical purposes.