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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI
This appeal by the assessee is directed against the order dated 28.02.2023 of Ld. Commissioner of Income Tax (Appeals), (in short Ld. CIT(A), National Faceless Appeal Centre, Delhi for Assessment Year 2018- 19. The assessee has raised following grounds of appeal:
1.That the Ld. AO was not justified in passing the penalty order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.
Sahakari karya Sanstha Page 2 of 5 2. That the Id CIT(A), NFAC was not justified in confirming the penalty order, which is bad-in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.
3. The Id CIT(A), NFAC did not provide the fair opportunity to the appellant to furnish document or reply in support of the claim and confirmed the addition.
4. The Penalty u/s 272A(1)(d) is illegal, unjust, untenable in law, bad in law, contrary to the facts and law, barred by limitation and without affording proper opportunity to the assessee.
That the Ld. CIT(A) erred in confirming penalty u/s 272A(1)(d) amounting to Rs. 10,000/- without considering the facts and circumstances of the case.
The appellant carves leave to add, amend or modify any of the grounds of
At the time of hearing Ld. AR of the assessee has submitted that the Ld. CIT(A) has passed impugned order ex-parte and without giving an effective opportunity of hearing to the assessee. He has further submitted that the CIT(A) has issued notice dated 24.02.2023 wherein only a copy of penalty order u/s 272A of the Act was sought to be filed. The assessee has duly complied with the said notice by filing the copy of the penalty order.
He has further pointed out that the assessee also filed written submission but due to confusion and mistake the submissions for quantum appeal also pending before the Ld. CIT(A) were submitted in the appeal against penalty order. Therefore, ld. CIT(A) without giving a further opportunity to file the correct submissions has passed the past impugned order. He has referred para 4.1 of the CT(A) and submitted that these facts have been recorded by the CIT(A) that the assessee has made the submissions in respect of the additions made by the AO in assessment instead of against Page 2 of 5 Sahakari karya Sanstha Page 3 of 5 the penalty levied by the AO u/s 272A of the Act. Ld. AR has submitted that the impugned order may be set aside and matter may be remanded to the record of the Ld. CIT(A) for fresh adjudication after giving an opportunity of hearing to the assessee.
On the other hand, Ld. DR has raised no objection if matter is remanded back to the record of the ld. CIT(A) for fresh adjudication.
We have considered the rival submission as well as relevant material on record. At the outset, it is noted that ld. CIT(A) in para 4.1 has recorded this fact that the submissions filed by the assessee pertains to the quantum appeal and not in respect of the penalty as under:
“4.1 I have gone through the facts of this case, the grounds of appeal made during the course of the appellate proceedings. The ground raised by the appellant relates to the levy of penalty of Rs. 10,000/- u/s 272A (1)(d), on account of non-compliance by the appellant, the appellant had committed default within the purview of section 272A(1)(d) which made him liable to penalty. However, in submissions and grounds of appeal the emphasis is on the additions made in the assessment. Therefore, these grounds are not decided as they don't pertain to the appeal under question. The fact of non- attendance and non-furnishing of information is not disputed.”
5. Further the assessee has also filed a copy of the notice issued by the ld. CIT(A) wherein the CIT(A) just ask the assessee to file a copy of the penalty order u/s 272A of the Act notice dated 24.02.2023 scanned as under:
Thus, it is clear that the assessee was not asked to file the correct submission even vide notice dated 24.03.3023 whereas the appeal of the assessee was dismissed for want of any submissions against penalty.
Accordingly, in the facts and circumstances of the case and in the interest of justice the impugned order is set aside and the matter is remanded to the record of the Ld. CIT(A) for fresh adjudication after giving appropriate opportunity of hearing to the assessee. Sahakari karya Sanstha Page 5 of 5 6. In the result, appeal of assessee is allowed for statistical purposes.
Order pronounced in the open court on 25.05.2023.