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Income Tax Appellate Tribunal, “C” BENCH: KOLKATA
Before: Shri Mahavir Singh, JM & Shri M. Balaganesh, AM]
ORDER Per Shri Mahavir Singh, JM:
This appeal by assessee is arising out of order of CIT(A)-XXXIII, Kolkata in Appeal No.17/CIT(A)-XXXIII/Cir-Hal/08-09 dated 12.02.2013. Assessment was framed by ACIT, Circle-Haldia, u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) for AY 2005-06 vide its order dated 30.06.2007. Penalty was imposed by ACIT, Circle-Haldia u/s. 271(1)(c) of the Act vide its order dated 28.03.2008.
We have heard this matter ex parte. None is present for revenue or from the assessee. Revenue has filed a petition for adjournment asking for adjournment in twenty matters out of twenty three totally fixed in the cause list. The reason given by revenue in its petition dated 23.11.2015 reads as under: “I am directed to request to the Hon’ble “C” Bench, ITAT, Kolkata that Shri Rajat Kumar Kureel, JCIT, Sr. (DR) will not be able to represent the above mentioned cases since he is going on a visit to Burdwan for official work on 23rd November, 2015. Accordingly, I am directed to request that the case may kindly be adjourned for a later date as per the convenience of the Hon’ble Bench.” We find that the revenue is seeking adjournment on frivolous ground and this is a regular feature. Hence, without giving adjournment, this being a small case, very old matter and appeal is pending since 2010, we proceeded to decide it ex parte.
The only issue in this appeal of assessee is against the order of CIT(A) confirming the levy of penalty u/s. 271(1)(c) of the Act on account of disallowance of truck hire charges, bogus purchases and staff quarter rent and bogus material purchase.
2 Saha & Mondal Constn., AY 2005-06 4. Briefly stated facts are that the AO levied penalty ex parte and stated that none appeared on behalf of assessee nor filed any explanation. The CIT(A) confirmed the penalty despite the fact that the plea was raised before him that these disallowances are on estimate basis. Aggrieved, assessee is in appeal before Tribunal. 5. We find from the grounds raised and case records that the penalty was levied by the AO ex parte and even CIT has not considered the plea of the assessee that the revision petition filed by assessee before CIT-XVIII, Kolkata u/s. 264 of the Act was pending. It was the plea of the assessee before CIT(A) that no cross examination of the parties concerned to whom enquiry report was obtained qua these disallowances of expenses or bogus purchases and in the absence of the same, penalty was confirmed by CIT(A). We find that reasonable opportunity of being heard was not allowed to the assessee and accordingly, we set aside the penalty order passed by AO and restore the matter back to his file to adjudicate afresh after allowing reasonable opportunity of being heard to the assessee. The assessee is also directed to cooperate with the AO in the penalty proceedings. Appeal of assessee is allowed for statistical purposes.
6. In the result, the appeal of assessee is allowed for statistical purposes.