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Income Tax Appellate Tribunal, DELHI BENCH, ‘DB’: NEW DELHI
Before: SHRI R.K. PANDA & SHRI N. K. CHOUDHRY
ORDER PER R.K. PANDA, AM,
This appeal filed by the assessee is directed against the order dated 06.03.2019 of the learned CIT(A), Dehradun, relating to Assessment Year 2014-15.
Facts of the case, in brief, are that the assessee is an individual and engaged in the business of sale/purchase of land, land development, real estate business and is running a hotel in the name and style of Hotel Rajpur Height At Dehradun. The assessee filed the return of income for the impugned assessment year on 11th September, 2014, declaring total income of Rs.48,59,720/-. The cases was selected for limited scrutiny and accordingly notice u/s 143(2) of the Income Tax Act, 1961 was issued on 31.08.2015, which was duly served upon the assessee. During the course of assessment proceedings, the AO noted that a survey u/s 133A of the Act was conducted at the business premises of the assessee at 121-Rajpur Road, Jakhan Dehradun & Hotel Rajpur height, Old Mussorie Road, Rajpur, Dehradun on 08/09-09-2016. During the survey, certain discrepancies were found in the books of account and other documents found at the premises of the assessee, which were confronted with the assessee in the statement recorded during the course of survey. It was revealed that the assessee had purchased the land at village Sinola, Pargana Central Doon, Dehradun jointly with Shri Pritpal Singh, Shri Rajeev Jain & Sh Narendra Jain at a consideration of Rs.1,60,00,000/- while circle rate of the land for stamp valuation purposes was Rs.2,45,40,000/-.
The assessee was confronted during the survey proceeding to explain as to why, he did not offer the difference of circle rate and consideration paid for land as his income of the year in view of provision u/s 56(2)(vii)(b) of the Act.
2.2. During the survey, the assessee had declared Rs.29,89,000/- as his additional income. During the course of assessment proceedings, the assessee furnished revised computation for the impugned assessment year. The AO accordingly determined the total income of the assessee at Rs.78,48,720/-, the details of which are as under:-
Total Income as per ITR Rs.48,59,720/- Add. Income surrendered as Rs.29,89,000/- per para 4 Total income Rs.78,48,720/- 2.3. The assessee did not file any appeal before the Ld. CIT(A) and accepted the income determined by the AO.
Subsequently the AO initiated penalty proceedings u/s 271(1)(c) of the Act. Rejecting the various explanation given by the assessee, the AO levied penalty of Rs.9,23,601/- being 100% of the Income Tax sought to be evaded.
In appeal, the Ld. CIT(A) confirmed the penalty levied by the AO in the ex-parte order passed by him.
Aggrieved with such order of the Ld. CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds:-
i. That the order passed by the Hon’ble Commissioner of Income Tax (Appeals), Dehradun is bad in law, against the facts of the case and principles of natural justice. ii. That the Hon’ble Commissioner of Income Tax (Appeals) has erred in facts in dismissing the appeal on the ground of non-compliance. iii. That the order passed by the Hon’ble Commissioner of Income Tax(Appeals), Dehradun has erred in facts in showing the Notices of 4 dates, which remained non complied, whereas no such notices were served on the appellant.
We have heard the rival arguments made by both the sides, perused the orders of the A.O. and the Ld. CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find despite four opportunities granted by the ld. CIT(A), the assessee did not appear before him for which the Ld. CIT(A) on the basis of material available on record and following the decision of the Hon’ble Supreme Court in the case of MAC DATA Pvt. Ltd. vs CIT reported in 38 taxman.com 448(SC) sustained the penalty levied by the AO. It is the submission of the ld. Counsel for the assessee that due non-service of notice on the assessee, the appeal remained unrepresented before the Ld. CIT(A). It is his submission that in the interest of justice, the assessee should be given one final opportunity to substantiate his case before the Ld. CIT(A). Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore this issue to the file of the ld. CIT(A) with a direction to grant one final opportunity to the assessee to substantiate his case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the Ld. CIT(A) to substantiate his case without seeking any adjournment under any pretext failing which the ld. CIT(A) is at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
This order was pronounced in the open court at the time of hearing itself i.e. on 23rd February, 2022.