AVNISH KUMAR GUPTA,SIDHI vs. INCOME TAX OFFICER WARD-2, REWA, REWA

Per Manomohan Das, JM:

5.2 We have perused the findings of the ld. CIT(A) as stated in his order dated 22-09-2021. The ld. CIT(A) in para No. 6.2 of his order states that:- “I have carefully examined the issue in hand on the basis of material on record. This is the case where assessment has been completed u/s 147/144 and penalty is initiated u/s 271(1)(b) of the Act. Notices u/s 142(2) and 143(2) were issued to appellant but he failed to comply to those notices claiming that notices were sent to wrong address. No address change letter / application is on the record for AO as well as CIT(A) can be seen. No records to show change of address was communicated to the I.T. Department or updated on the e-filing portal has been furnished. Therefore, the penalty-initiated u/s 271(1)(b) of the Act amounting to Rs. 10,000/- by the Assessing Officer is hereby confirmed.” 2 | P a g e

(AY 2009-10) Avnish Kumar Gupta v. ITO From the aforesaid finding by the ld. CIT(A), it is clear that the assessee did not communicate his changed address to the Revenue. Therefore, the Assessing Officer had no other alternative but to send notices at the assessee‟s address as available with the Department. No cause of grievance is made out, with in fact the position continuing before us as well.

5.3 Allegation regarding non-granting of specific opportunity to explain the case is also made against the ld. CIT(A) by the assessee. In this connection, the order dated 22-09-2021 of the ld. CIT(A) reads as under:- “This appeal is directed against order under section 271(1)(b) of the Income-tax Act, 1961 („the Act‟) dated 25-05-2017 for the assessment year 2009-10 passed by the Income Tax Officer, Ward 2, Rewa [hereinafter referred to as “AO”]. The appeal was instituted on 26-06-2017. Subsequently, the appeal was migrated to the National Faceless Appeals Centre in terms of Notification no.76/2020/F.No.370142/33/2020-TPL dated 25-09-2020 issued by the Board. Notice was issued u/s 250 of the Act on 29/12/2020 for furnishing submission on 05-01-2021 on ITBA portal. Again, notice issued u/s 250 of the Act was issued on 11-08-2021 for furnishing submission on 26/08/2021 on ITBA portal. Further opportunity was afforded vide notice issued on 25-08-2021 to make written statement, if any, on or before 16-09-2021.‟ This notice was responded by the assessee by submitting on the ITBA portal that the appellant has not received notices as all notices were sent on wrong address.” From the aforesaid contents of the impugned order, it is clear that the allegation of the assesse regarding grant of opportunity to explain the case is not tenable and, accordingly, this ground of appeal is also without merit. GOA 2: 6.1 The second ground of appeal by the assesse is that the ld. CIT(A) has totally ignored the fact that the assessee has submitted written submission annexed with annexure on 02-01-2020 in the office of CIT(A) Jabalpur-1. The ex-parte appeal order so passed may please be quashed in toto. 6.2 The assessee‟s submissions stand reproduced at para

3. (pgs. 2-4) of the impugned order. The contents thereof stand perused by the ld. CIT(A), and duly

(AY 2009-10) Avnish Kumar Gupta v. ITO considered in disposing the grounds of appeal assumed by the assesse before him. No fresh cause of action is accordingly made out. We decide accordingly. GOA 3: Vide his 3rd Ground, the assessee alleges that the ld. CIT(A) as well as 7.1 Assessing Officer is not justified in imposing penalty u/s 271(1)(b) without appreciating the fact that no notice of hearing and fixation of case was ever served to the assessee.

7.2 This allegation of the assessee is baseless. The Assessing Officer issued several notices at the address of the assessee which was available with department during the assessment proceedings by the Assessing Officer. The Assessment order dated 28-11-2016 regarding the service of notices reads as under-- Notice dated 29-03-2016 under section 148 issued to the assessee which was served on 30-03-2016 but the assessee did not comply the notice. Thereafter, notice dated 07-06-2016 under section 142(1)/143(2) of the Act was sent to the assessee through registered post the receipt of which is available in the record. Again, the assesse did not comply the said notice. Further notice under section 142(1) was issued to the assessee through server which was served on the assessee on 12-07-2018 the receipt of which is available in the record. Similarly notices dated 22-07-2016 fixing date of hearing on 01- 08-2016, letter dated 04-08-2016 fixing date of hearing 16-08-2016 and a detailed letter dated fixing date of hearing on 27-10-2016 and also ex-parte hearing notice dated 07-11-2016 fixing date of hearing on 18-11-2016 were issued but assesse did not comply the same. 7.3 On this issue, the ld. CIT(A) at para 6.2 of his order (reproduced at para 5.2 above) states that Notices under section 142(1) and 143(2) were issued to appellant but he failed to comply to those notices, claiming that notices were sent to wrong address. That no address change letter/application is on the record of the AO as well as before him.

7.4 It clearly cannot, on the basis of the foregoing, be said that due opportunity of hearing had not been extended to the assessee. Gd. 3 of the assessee only merits dismissal. 4 | P a g e

(AY 2009-10) Avnish Kumar Gupta v. ITO GOA 4 : 8.1 The fourth ground of appeal of the assessee is that the penalty so imposed by Assessing Officer and confirmed by the CIT Appeal is without appreciation of fact that the notices were sent by assessing officer without confirming service of notice at address where assessee did not reside. The penalty so imposed may be quashed. 8.2 The notices issued by the Assessing Officer were served on the assesse which is stated in the assessment order dated 28-11-2016 which has been considered and discussed by us while considering ground of appeal no.

3. The allegation of the assesse is baseless and accordingly we decide this ground of appeal also against the assessee.

10. The assessee‟s principal objection in the instant case relates to non-receipt of notice/s u/s. 142(1) issued by the AO in the course of hearing. And which we have found as without merit on the basis that the Revenue had communicated with the assessee at his address on it‟s record. In fact, there is a specific reference to the service of notices per e-mail, as on 12/07/2016. Also, we again observe no specific denial by the assessee before the ld. CIT(A) of the notices stated as served – with acknowledgments on record, as specified at paras 1 & 2 of the assessment order. There is no further no dispute qua the service of notice u/s. 148(1) dated 29/03/2016 on 30/03/2016 as well as the show-cause notice u/s. 271(1)(b) on 22/08/2016, clearly indicating a selective receipt of notices. Even this Tribunal had, toward disposing the instant appeal, on the notices of hearing by it at the address specified in Form 36 (memo of appeal) returning back unserved, sought to communicate the same at the assessee‟s latest address with the Revenue (implying the office of the ld. CIT(A) as well), including that per PAN data, to find the changed address having not been communicated to the Revenue even to date. In our clear view, giving the assessee‟s delinquent, nonchalant conduct, the Revenue 5 | P a g e

(AY 2009-10) Avnish Kumar Gupta v. ITO has in imposing the impugned penalty acted reasonably inasmuch as, as against several instances of non-compliance by the assessee, penalty has been levied for only one default. We, accordingly, find no reason for interference.

1. 1. The Appellant: Avnish Kumar Gupta, Village Kotaha, Madwas Road, Sidhi (MP) 2. The Respondent: ITO, Ward-2, Rewa 3. CIT(A)-NFAC, Delhi 4. The Sr. D.R., ITAT, Jabalpur.

5. Guard File. By order

(VUKKEM RAMBABU) Sr. Private Secretary, ITAT, Jabalpur.