ANJALI SAINI,ZIRAKPUR vs. ITO-WARD-5(5), CHANDIGARH

The Assessee is aggrieved by order of the Ld. CIT (A) bearing DIN and Order number :- ITBA/NFAC/S/250/2022-2023/1047329745(1) dated 15.11.2022 which was dismissed under section 250(6) of the Income Tax Act,1961 by the Ld CIT (A) in First Appeal. Therefore, the present second appeal under section 253 of the Income Tax Act, 1961 before us against the aforesaid order dated 15.11.2022 which is hereinafter referred to as the impugned order. FACTUAL MATRIX 3. That the Asssessee Smt. Anjali Saini filed her income tax return disclosing Income of Rs. 4,44,152/- on 21.06.2012 for AY 2011-12 wherein her Postal Address was # 22, Jain Nagar, Ambala Haryana 133001. The copy of the Income tax return filed along with address perused by us from paper book.

Thereafter a notice under section 148 dated 22.03.2019 was issued at the address mentioned above. That the said notice was received back by the Department of Income Tax with the Remark “2-3 saal pehley yahaan sey bechkar chaley gaye” on the notice. As the assesseee had shifted from the above address to new address at B-201, Maya Garden, Phase-3, VIP Road, Zirakpur. The envelope through which the Notice under 148 was sent was also received back with remark “Bina pata bataye ghar chod gaye” The copy of the notice and the envelope disclosing the above remarks have been perused by us from the paper book including one by postal authority.

During the course of assessment proceedings the notice u/s 142(1) was issued on 20.05.2019, once again at address 22, Jain Nagar Ambala, Haryana 133001 even after knowing the fact by the Ld. AO that the assessee has left the place this aspect is noted by us. The said notice u.s 142(1) was also received back by the department with remark “Anjali saini iss makaan ko bechkar chaley gaye ab patanahin kahaan paar rehtey hein” on the notice u/s 142(1). The copy of the notice under section 142(1) disclosing such remarks have been perused by us from paper book. The remark is dated 22.02.2019.

After that a letter dated 05.11.2019 was affixed, again at address #22, Jain Nagar, Amabala, Haryana 133001 even after knowing the fact by the Ld. AO that the assesse has left the place which is once again noted by us. The said letter dated 05.11.2019 has been perused by us from the paper book, including the remark of pasting dated 07.11.2019.

That the assessment was made under section 147 read with section, vide order dated 15.11.2019. mentioning the abovementioned address. We have perused the said assessment order dated 15.11.2019 wherein there is addition of Rs.44,83,500/- by Ld. AO against investment made by her in the immovable property. We have noted that before passing assessment order dated 15.11.2019 the Ld. AO had taken necessary steps in law vide letters dated 20.05.2019 and 05.11.2019. These letters too met the same fate as supra. The Remarks of notice server on both letters have been perused by us at Page 5-6 of paper book.

That notice for penalty proceedings under section 271 (1) (b) for initiation of penalty under section 271(1)(b) was issued to the assesse vide notice dated 15.11.2019 once again at address # 22 Jain Nagar, Ambala, Haryana 133001 even after knowing the fact by the Ld. AO that the assesse has left that place which fact is noted again. The copy of the said notice dated 15.11.2019 has been perused by us from the paper book at page 7 and have read its contents too including address.

That on notice dated 15.11.2019, no Document Identification Number (DIN) has been mentioned whereas as per circular no. 19/2019 dated 14.08.2019 issued by CBDT, it has been mentioned therein that “no communication shall be issued by any Income Tax Authority relating to assessment, penalty on or after 01.10.2019 unless a computer generated DIN has been allotted and is duly quoted in the body of such communication” in this circular at para 4 it has also been mentioned that if any communication which is not in conformity with the above, shall be treated as invalid and shall be deemed to have never been issued. The copy of the said circular dated 14.08.2019 has been perused by us from the paper book including show cause notice for penalty u/s 271(1)(b).

That it is contended the notice for initiation of penalty dated 271(1)(b) dated 15.11.2019 is invalid in law and shall be deemed to have never been issued. Keeping in view that the notice for very initiation of penalty u.s 271(1)(b) dated 15.11.2019 is invalid, the subsequent proceedings also become invalid and void ab initio and it is prayed that the penalty u.s 271(1)(b) levied by the Ld. AO and confirmed by the Ld. CIT (A) be deleted. Most importantly we notice that there is another show cause notice dated 14.06.2021 u/s 271(1)(b) of the Income Tax Act, 1961 to the assessee bearing a DIN Number. However, address is same (supra) i.e., Ambala Haryana. We also notice that there is yet another notice of show cause u/s 271(1)(b) which is dated 15.07.2021 bearing a DIN including one dated 03.09.2021. That the Ld. AO vide DIN order no:- IBA/PNL/F/271(1)(b)/2021-2022/1038023701(1) dated 22.12.2021 wherein penalty has been imposed of Rs. 20,000/- in aggregate for non-compliance of notice dated 20.05.2019 (Rs.10,000) and notice dated 05.11.2022 (Rs.10,000).

That the assesse came to know about the assessment order and penalty order, when the bank account of the assesse was attached in the recovery proceedings. After that the assesse got the papers from the department for further remedies.

That being aggrieved of the Ld. AO’s order the assesse filed an appeal before the Ld. CIT(A) against the order under section 271(1)(b) before the Ld. CIT(A) on 18.02.2022. While filing the appeal before Ld. CIT(A), the form 35 mentions the address of the assesse as :B-201,Maya Garden, Phase-3, VIP Road, Zirakpur and email id as ANJALISAINI2510@GMAIL.COM. The copy of the form 35 has been perused by us from the paper book including acknowledgment receipt dated 18.02.2022.

The Ld. CIT(A) sent the notice of hearing dated 02.11.2022 on email id at SHASHIBHUSHAN2510@GMAIL.COM instead of E-mail id at ANJALISAINI2510@GMAIL.COM (as mentioned in FORM 35) and as the asssessee was not aware of the said notice and could not reply the said notice. The copy of the notice of hearing dated 02.11.2022 has been perused by us from the Paper book at Page 23.

That the Ld. CIT(A) passed the order dated 15.11.2022 in which penalty under section 271(1)(b) was confirmed. This order was also not received by the assessee at the email id mentioned in the FORM 35.

That appellant has also filed an appeal before the Ld. CIT(A) against the order of penalty imposed under section 271(c) for AY 2012-2013. The notice of hearing for this appeal against penalty under section 271(1) (c) dated 17.08.2023 was received by the assesse on her email id anjalisaini2510@gmail.comas was mentioned in the FORM 35. The copy of the said notice has been perused by us from the paper book. (Nor relevant for purpose of adjudication of this second appeal) 16. That for filing the reply to the said notice against penalty u.s271(1)(c) dated 17.08.2023 the appellant logged into the e-portal on 19.08.2023 and at that time the appellant came to know about the passing the order for penalty u/s 271(1)(b) by the Ld. CIT(A) vide order dated 15.11.2022 for the A.Y 2012-2013. Thereafter order of CIT(A) was downloaded by the appellant on 19.08.2023 and filed appeal against such order before the Hon’ble ITAT Chandigarh on 16.10.2023. Prior to this i.e., 19.08.2023, there was no communication received from CIT(A) by the appellant either through proper email at anjalisaini2510@gmail.com or through registered post for passing such an order.

Keeping in view of the same, the date of communication of Ld. CIT(A) has been mentioned as 19.08.2023 and the appellant has filed the appeal before the present Tribunal on 16.10.2023. GROUNDS FOR APPEAL 18. Being aggrieved by the order of the Ld. CIT(A) the assessee is now before us and has interalia raised following grounds of appeal in Form no. 36 which are reproduced below:

That the authorities below are not justified in not providing the proper opportunity of hearing which is against the natural justice and the order passed by the Ld. AO be quashed.

RECORD OF HEARING That the hearing took place on 16.05.2024. That none appeared on behalf of the assessee and the department was represented by SmtAmanpreetKaur. However, written submissions were filed on behalf of the assesse with a request to consider the same as final submissions of the present appeal. On the other hand the Sr. DR has relied on the CIT(A) order and reiterated the same before the Bench and has submitted that the said order of the CIT(A) be upheld. FINDINGS AND CONCLUSIONS 20. In the premises set out herein above, we now have to decide the legality validity and proprietary of the Order of Ld. CIT (A). We have carefully perused the order of the Ld. CIT (A), grounds of appeal as well as the written submissions filed by the appellant. That the AO has levied penalty u/s 271(1)(b) for the default committed by the appellant in course of the assessment proceedings in respect of non-compliance to notices u/s 142(1) of IT Act. During the assessment proceedings, it was observed that statutory notices were issued on 20.05.2019 and 05.11.2019 to the appellant/assessee at the address provided by the appellant on the data base of the authority. Furthermore, all the notices were sent to the same addressbut they were returned with remarks indicating that the appellant had moved to another location. It was incumbent upon the appellant to have informed the authority/department of her new address immediately upon change of address both to AO and by making amendments in data base of PAN. The facts of the present appeal clearly show that the appellant failed to do so. On the date fixed for compliance, none appeared on behalf of the assessee and since the assessee failed to comply with the notices u/s 142(1), show cause notices u/s. 271 read with section 271(1)(b) of the act vide notices dated 15.11.2019,14.06.2021,15.07.2021 and 03.09.2021 were issued to show cause as to why penalty should not be imposed. No heed was paid by the assessee to the mentioned notices as well which clearly indicate the unresponsive attitude of the assessee which resulted the Ld. AO to hold the assessee in default and impose a minimum penalty of Rs.20,000/- u/s 271(1)(b) of the IT Act, 1961 for non-compliance of two Notices u/s. 142 (1) of the Act dated 20.05.2019 and 05.11.2019. 20.1 That it has been urged by the assessee that she came to know regarding the assessment order and penalty order during the recovery proceedings and the assessee received the papers through the authorities.

In the premises set out hereinabove in entirety, the appeal of the assesse is allowed for statistical purposes.