SH. SIMON MARANDI,NEW DELHI vs. ACIT, NEW DELHI

The only grievance of the assessee in this appeal relates to the sustenance of penalty u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter referred to as the Act) amounting to Rs. 1,30,000/- by passing the ex-parte order.

Facts of the case in brief are that the assessee filed the return of income on 13.09.2007 declaring an income of Rs. 86,226/-. The AO framed the assessment ex-parte u/s 144 of the Act by making an addition of Rs. 4,90,000/-. The AO initiated the penalty proceedings u/s 2 Simon Marandi 271(1)(c) of the Act and levied the penalty of Rs. 1,30,000/- by passing the ex-parte order.

Being aggrieved the assessee carried the matter to the ld. CIT(A) who also passed the impugned order ex-parte and dismissed the appeal of the assessee on account of non-appearance in limine.

Now the assessee is in appeal. During the course of hearing nobody was present on behalf of the assessee neither any adjournment was sought. I, therefore, proceeded ex-parte qua the assessee and the appeal is decided after hearing the ld. DR. During the course of hearing the ld. DR submitted that the assessee is habitual in non-appearance and never appeared either before the AO or before the ld. CIT(A). Therefore, the AO rightly levied the penalty u/s 271(1)(c) of the Act on the concealed income and the ld. CIT(A) was fully justified in confirming the same.

I have considered the submissions of the ld. DR and perused the material available on the record. In the present case, it is noticed that the ld. CIT(A) mentioned in the impugned order that most of the time the assessee sought adjournment. Therefore, the assessee appears to be habitual in non-appearance on given dates of hearing. However, he has not mentioned the reasons for seeking the adjournment. He also did not discuss as to whether the reasons stated by the assessee for seeking the 3 Simon Marandi adjournment were plausible or fabulous. It is also well settled that nobody should be condemned unheard as per maxim audi alteram partem. I, therefore, keeping in view the principles of natural justice set aside the impugned order and remand the case back to the file of the ld. CIT(A) to be adjudicated afresh after providing due and reasonable opportunity of being heard to the assessee.

In the result, the appeal of the assessee is allowed for statistical purposes. (Order Pronounced in the Court on 24/09/2015)