SMT. BEENA GUPTA,GORAKHPUR vs. INCOME TAX OFFICER, WARD - 1(2), GORAKHPUR

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ITA 18/VNS/2022Status: DisposedITAT Varanasi22 August 2022AY 2008-20093 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) confirmed the penalty without considering that the additions on which the penalty was levied were already set aside. Therefore, the impugned order of the CIT(A) was set aside.

What were the facts?

The assessee's appeal against a penalty order under section 271(1)(c) was being heard. The ITAT had previously set aside the quantum appeal to the CIT(A) for fresh adjudication.

What were the issues?

Whether penalty under section 271(1)(c) can be sustained when the underlying additions have been set aside. Whether the CIT(A) properly considered the prior order of the ITAT.

Which sections of the Income-tax Act were involved?

Section 271(1)(c)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, CIRCUIT ‘SMC’ BENCH, VARANASI

Before: SHRI.VIJAY PAL RAO

Hearing: 22.08.2022Pronounced: 22.08.2022

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT ‘SMC’ BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER Assessment Year: 2008-09 Smt. Beena Gupta, v. Income Tax Officer, Power House Road, Mohaddipur, Ward-1(2), Gorakhpur, Gorakhpur, U.P. U.P. PAN-ABYPG6580E (Appellant) (Respondent) Appellant by: None Respondent by: Sh. A.K. Singh, Sr. DR Date of hearing: 22.08.2022 Date of pronouncement: 22.08.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 27.05.2022 of CIT(A) (National Faceless Appeal Centre, Delhi) arising from penalty order passed under section 271(1)(c) of the Income Tax Act for the assessment year 2008-09.

2.

None has appeared on behalf of the assessee when this appeal was called for hearing despite the notices issued to the assessee through RPAD as well as email.

3.

At the outset, it is noted that in the quantum appeal, this Tribunal vide order dated 8th May, 2019 has set aside the matter to the record of the CIT(A) for fresh adjudication. Accordingly, the Tribunal proposed to hear and dispose of this appeal ex parte.

4.

I have heard the learned DR and perused the impugned orders of the authorities below. The CIT(A) has confirmed the levy of penalty under section 271(1)(c) without considering the fact that the additions against which the penalty was levied by the Assessing Officer were already set aside by this ITA No.18/VNS/2022 Smt. Beena Gupta Tribunal to the record of the CIT(A), vide order dated 8th May, 2019 in ITA No. 22/VNS/2018. The relevant finding of this Tribunal in the quantum appeal in para 5 is as under:- “Having carefully examined the order of the ld. CIT(A) vis-a-vis the grounds of appeal

raised before us, we find that though the ld. CIT(A) has recorded certain dates of hearing in his order, but it is not clear from his order whether notice of hearing was ever served upon the assessee. Since the ld. CIT(A) has not disposed of the appeal on merit after affording opportunity of being heard to the assessee, we set aside his order and restore the matter to his file with a direction to re-adjudicate the issues raised before him after affording opportunity of being heard to the assessee. Accordingly, the appeal of the assessee stands allowed for statistical purposes. The assessee, no doubt, shall cooperate in the fresh proceedings before the ld. CIT(A). All pleas available under the law shall remain so available to the assessee. Ordered accordingly”

5. Since the CIT(A) has passed the impugned order without considering this fact that this Tribunal has already set aside the quantum proceedings to the record of the CIT(A) for fresh adjudication therefore, in the facts and circumstances of the case, the impugned order of the CIT(A) is set aside and the matter is remanded to the record of the CIT(A) for deciding the same afresh after considering the earlier order of this Tribunal in quantum proceedings and as per the outcome of the set aside proceedings in the quantum proceedings. Needless to say the assessee be given an opportunity of hearing before passing the fresh order.

6. In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court after a conclusion of hearing on 22.08.2022. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 22/08/2022 Varanasi Sh 2

ITA No.18/VNS/2022 Smt. Beena Gupta

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