PUNEET JHUNJHUNWALA,VARANASI vs. DCIT, CC,, VARANASI

This appeal, filed by assessee, being is directed against an appellate order dated 23.10.2018 in Appeal No.12/ACIT/CC/Vns./CIT(A)-3/Lko./16-17passed by learned Commissioner of Income Tax (Appeal)-III, Lucknow(hereinafter called "the CIT(A)"),for assessment year(ay):2013-14, the appellate proceedingshad arisen before learned CIT(A) from penalty order dated 26.09.2017passed by learned Deputy Commissioner of Income- tax(hereinafter called the “AO”), Central Circle, Varanasi, U.P. , u/s. 271AAB of the ITA No.30/Vns/2019 Assessment Year: 2013-14 ShriPuneetJhunjhunwala, Income-tax Act, 1961 (hereinafter called "the Act") foray: 2013-14, levying penalty of Rs. 15,00,000/- against the assessee u/s 271AAB of the 1961 Act.We have heard both the partiesin Open Court through physical hearing mode.

The brief facts of the case are that penalty order dated 26.09.2017 u/s. 271AAB of the 1961 Act was passed by ld. Assessing Officer , leaving penalty of Rs.15.00 lacs against the assessee. This penalty order was challenged by assessee by filing first appeal before ld. CIT(A) , who was pleased to dismiss the appeal filed by the assessee, vide appellate order dated 23.10.2018 . While dismissing the appeal of the assessee the ld. CIT(A) passed an ex-parte order as none appeared on behalf of the assesse, while it is claimed by ld. CIT(A) in its appellate order that two opportunities of hearings were granted to the assessee, as detailed hereunder: Date of Notice Date of hearing Remarks fixed 27/07/2018 14/08/2018 None Attended 09/10/2018 22/10/2018 None Attended It is noted by ld. CIT(A) in its appellate order that none attended on behalf of the assessee despite the two aforesaid opportunities being granted to the assesse. The ld. CIT(A) was pleasedto pass its appellate order on 23.10.2018 which was the very next date of last hearing on 22.10.2018 itself , dismissing the appeal of the assessee.

Aggrieved by the aforesaid appellate order passed by ld. CIT(A), the assessee has now come in appeal before theIncome Tax Appellate Tribunal, Varanasi (hereinafter called “ the tribunal”) and it is submitted by ld. counsel for the assessee that ld. CIT(A) has not given proper and adequate opportunity of being Assessment Year: 2013-14 ShriPuneetJhunjhunwala, heard to the assessee as only two notices of hearing were issued , the first notice being dated 27.07.2018 and the appeal was finally disposed off on 23.10.2018 itself i.e. within three months of issuance of first notice.The assessee has claimed vide ground number 2 raised in memo of appeal filed with tribunal, that these two notices were not received by the assessee. Further it was submitted that ld. CIT(A) has not passed speaking order while dismissing the appeal of the assessee as the issue in appeal regarding levying of penalty u/s 271AAB was not discussed at all by ld. CIT(A) on merits and the appeal stood dismissed in limine ex-parte by ld.CIT(A) without passing a reasoned and speaking order on merits of the issue. It is fairly prayed by the ld. counsel for the assessee that the appellate order passed by ld. CIT(A) may be set aside and the matter may be restored to the file of ld. CIT(A) for fresh adjudication of issues raised in appeal by the assessee on merits, by passing a speaking and reasoned order.

The ld. Sr. DR also fairly submitted that keeping in view facts and circumstances of the case, the matter can go back to the file of ld. ld. CIT(A) for fresh adjudicationof all the issues raised by the assessee in its appeal filed before ld. CIT(A) , on merits.

We have considered rival contentions and have perused the material on record. We have observed that penalty order dated 26.09.2017 was passed by ld. AO u/s. 271AAB of the Act ,leaving penalty of Rs.15.00 lacs against the assessee. The said penalty order was challenged by assessee by filing first appeal before ld. CIT(A), who dismissed the appeal of the assessee ex-parte in limine without discussing the issue’s raised by the assessee in its appeal n merits. We have observed that ld. ld. CIT(A) has issued two notices of hearings to the assessee, as detailed hereunder: Assessment Year: 2013-14 ShriPuneetJhunjhunwala, Date of Notice Date of hearing Remarks fixed 27/07/2018 14/08/2018 None Attended 09/10/2018 22/10/2018 None Attended There was no compliances on the part of assessee as none appeared on behalf of the assessee before ld. CIT(A) on the date of hearing fixed by ld. CIT(A). The assessee is now claiming that these notices were not received by him. We have observed that ld. CIT(A) dismissed the appeal of the assessee ex-parte in limine without discussing the issues on merits which were raised by the assessee in its appeal filed before ld. CIT(A). The reference is drawn to provision of Section 250(6) of the Act ,whereby it is incumbent upon ld. CIT(A) to decide the appeal on merits , after recording his reason for the decision arrived on the issues raised by the assessee in its appeal , but the appellate order in the instant case was passed by ld. CIT(A) ex-parte in limine without discussing the issues on merits, which makes this order unsustainable in the eyes of law. The assessee is equally responsible for its woes as the assessee has to be vigilant after filing its appeal. We have observed that the assessee filed its appeal before ld. CIT(A) on 20.11.2017, while the first notice was issued by ld. CIT(A) almost on 27.07.2018. Thus, the assessee is equally responsible for its woes.Both the parties have now fairly stated during the course of hearing before the Division Bench , that based on facts and circumstances of the case the matter can go back to the file of ld. CIT(A) for fresh adjudication of all the issues raised by the assessee in its appeal filed before ld. CIT(A) on merits in accordance with law. Thus keeping in view the entire facts and circumstances of the case as discussed above and in fairness to both the parties with a view to grant justice, we are inclined to set aside the appellate order dated 4 ITA No.30/Vns/2019 Assessment Year: 2013-14 ShriPuneetJhunjhunwala, 23.10.2018 passed by ld. CIT(A) and restore the matter back to the file of ld. CIT(A) for fresh adjudication on merits of all the issued raised by assessee in its appeal filed before ld. CIT(A) in accordance with law. Needless to say that ld. CIT(A) will give proper and adequate opportunity of hearing to the assessee in set aside remand proceeding in accordance with the principle of natural justice and in accordance with law. The ld. CIT(A) is directed to pass reasoned and speaking order on all the issues raised by the assessee in its appeal filed with ld. CIT(A)., while denovo adjudicating the appeal of the assessee. The evidences /explanations submitted by the assessee shall be admitted by ld. CIT(A) in accordance with law and be adjudicated on merits in accordance with law. The appeal of the assessee is allowed for statistical purposes. We order accordingly.

In the result, appeal of the assessee in for ay: 2013-14 is allowed for statistical purposes. Order pronounced in Open Courton23/03/2022at Varanasi, U.P. in the presence of both the parties, after the conclusion of hearing. The order is reduced in writing and signed on 24.03.2022 Sd/- Sd/- [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24/03/2022 Aks/- Copy forwarded to: