Anand Todi, Delhi V. ITO, Ward - 3(3), Chandauli

ITA 153/VNS/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3561 (ITAT-VARANASI)
• Duration Of Justice: 2 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 09-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARVIND SHUKLA
• Keywords: Search and seizure; Principle of natural justice; Rule of consistency; Non compliance; Documents seized
• Section: 132; 144; 142(1); 153A; 274; 153C

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL VARANASI CIRCUIT BENCH, VARANASI BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Sri Anand Todi, 76, Defence Enclave, Vikas Marg, Delhi 110092 v. Income Tax Officer, Ward-3 (3), Chandauli, U.P. PAN:ACFPT1922M (Appellant) (Respondent) Appellant by: Sri Arvind Shukla, Adv. & Ashish Zafar, Adv. Respondent by: Sri A.K. Singh, Sr. DR Date of hearing: 22.04.2022 Date of pronouncement: 27.04.2022 O R D E R PER Bench: These six appeals are filed by the assessee, three appeals are filed for assessment year 2014-15 and three appeals are filed for assessment year 2015-16 respectively, being aggrieved by two separate appellate orders for assessment year’s (ay’s) 2014-15 and 2015-16, being common appellate order comprising of three appeals each for assessment year 2014-15 and 2015-16 respectively , both appellate order(s) are dated 15 th April, 2019, and were passed by Ld. Commissioner of Income-tax(Appeals), Varanasi (hereinafter called “ the CIT(A)”), for assessment year(s) 2014-15 and 2015-16 respectively, dismissing all six appeals filed by assessee, three appeals each for ay’s:2014-15 and 2015-16 respectively , the six appeals before ld. CIT (A) has arisen from six separate penalty order’s passed by ld. Assessing Officer(hereinafter called “the AO”) u/s 271(1)(b) of the 1961 Act, three each for assessment year(s) : 2014-15 and 2015- 16 respectively, for three different defaults allegedly committed by assessee in ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 2 complying with three different notices issued by the AO u/s 142(1) of the Income- tax Act, 1961, for both the ay’s: 2014-15 and 2015-16 respectively. Since all these six appeals involve similar/identical issue , all these six appeals were heard together and are disposed off by this common order. These six appeals were heard by Division Bench of Varanasi Circuit Bench of the tribunal in Physical mode in Open Court hearings. We shall take up first take up appeal filed by the assessee in ITA No. 152-154/VNS/2019, all three appeals filed for ay: 2014-15, and our decision in ITA No. 152-154/VNS/2019, for ay: 2014-15 , shall apply mutatis mutandis to all the remaining three appeals in ITA no’s 155-157/VNS/2019 for ay: 2015-16 respectively, as similar issues are involved in both the years with similar facts. 2. The grounds of appeal raised by assessee in memo of appeal filed with tribunal ITA no. 152/VNS/2019, for ay: 2014-15, reads as under: “1. Because the learned CIT(Appeals) has erred in law as well as on facts in confirming penalty u/s. 271(1)(b) without appreciating the facts and circumstances of the case in the correct legal perspective. 2. Because the learned CIT(Appeals) has erred in law as well as on facts in confirming penalty u/s 271(1)(b) without appreciating that the learned AO had levied multiple penalties for non-appearance on three different dates without appreciating that there was neither proper service of notice nor was there any query.” 2.2 The assessee has raised similar grounds of appeal in memo of appeal filed for remaining two appeals filed for ay: 2014-15 , in ITA No’s. 153-154/VNS/2019. The assessee has also raised similar grounds of appeal in memo of appeal filed for three appeals filed for ay: 2015-16 , in ITA No’s. 155-157/VNS/2019 3. We shall first take up three appeal’s filed by the assessee, for ay: 2014-15 . The brief facts of the case are that there was a search and seizure operations conducted by Revenue u/s 132 of the 1961 Act , in the case of Genus Group of ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 3 cases, Moradabad on 30.07.2015. The ACIT,Central Circle , Moradabad sent a satisfaction note dated 09.03.2018 recorded in the case of M/s Kailash Coal and Coke Company Limited, to the AO of the assessee , and as per satisfaction note it was mentioned that there was a search and seizure operation conducted by Revenue u/s 132 of the 1961 Act, in the case of Genus Group of cases , Moradabad, on 30.07.2015, and during the course of search operations some incriminating document belonging to the assessee namely Shri Anand Todi Prop: Shree Ganesh Coal Enterprises, Chandasi, Chandauli were also found and seized. The details of incriminating documents seized along with the comments from the ACIT , Central Circle, Moradabad are reproduced by AO at page 1 & 2 of the assessment order dated 28.12.2018 passed by AO u/s 153A read with Section 153C/144 of the 1961 Act, for ay: 2014-15. The AO of the assessee , on perusal of the satisfaction note sent by ACIT, Central Circle, Moradabad and material on record, observed that the seized documents pertained to the assessee, and it has bearing on the determination of the total income of the assessee for the ay:2014-15. This led to the proceedings being initiated by the AO u/s. 153C of the 1961 Act, for ay: 2014- 15. The AO issued notice dated 22.03.2018 u/s. 153C to the assessee, which was claimed by AO to have been duly served on the assessee. The assessee was required to furnish return of income within 30 days from the date of service of aforesaid notice. The assessee did not file return of income in pursuance to the aforesaid notice issued by the AO . Thereafter, the AO issued notice dated 22.06.2018, u/s. 142(1) of the 1961 Act , for compliance on 09.07.2018, which was again not complied with by the assessee. The AO issued further notice dated 14.09.2018 u/s 142(1) , for compliance on 24.09.2018, but again none attended on behalf of the assessee. The AO issued fresh notice dated 10.10.2018 u/s 142(1) , for compliance on 16.10.2018, but again none attended on behalf of the assessee. The AO issued penalty notice dated 10.10.2018 u/s 271(1)(b) of the 1961 Act for failure to comply with notice dated 14.09.2018 u/s 142(1) issued by the AO to the ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 4 assessee, the date of compliance in the penalty notice dated 10.10.2018 was fixed for 16.10.2018 , but there was again no compliance by the assessee. The AO issued penalty notice dated 20.11.2018 u/s 271(1)(b) of the 1961 Act for failure to comply with notice dated 10.10.2018 u/s 142(1) issued by the AO to the assessee, the date of compliance in the penalty notice dated 20.11.2018 was fixed for 26.11.2018 , but there was again no compliance by the assessee. The AO again issued notice dated 20.11.2018 u/s 142(1) of the 1961 Act , fixing the date for compliance on 26.11.2018 . The assessee filed power of attorney dated 21.11.2018 and Balance Sheet, Trading , Profit and Loss Account for the year ended on 31.03.2014 through e-filing proceedings , but no other details as were called for by the AO vide questionnaire were submitted by the assessee. The AO issued fresh notice dated 06.12.2018 u/s 142(1) of the 1961 Act , for compliance on 10.12.2018. The AO also simultaneously issued summons dated 06.12.2018 , u/s. 131 of the 1961 Act , for compliance on 10.12.2018. There was no compliance by the assessee , either to the notice dated 06.12.2018 issued by the AO u/s 142(1) of the 1961 Act, nor was there any compliance by the assessee to the summons dated 06.12.2018 issued by the AO , u/s 131 of the 1961 Act. The AO issued penalty notice dated 14.12.2018 u/s 271(1)(b) for non compliance of notice dated 06.12.2018 u/s 142(1) of the 1961 Act, which was again not complied with by the assessee. The AO was pleased to pass three separate penalty orders dated 01.11.2018 , 03.12.2018 and 20.12.2018 respectively , imposing penalty of Rs. 10000/- each , u/s 271(1)(b) all for ay: 2014-15 , for non compliance by the assessee of the aforesaid three notice(s) issued by AO u/s 142(1), dated 14.09.2018, 10.10.2018 and 06.12.2018 respectively. The assessee filed reply on 24 th Dec. 2018 through e-proceedings, as under: “Due to ranson ware attack we are unable to file return u/s 153C. we wish that our original digitally verified return be treated as if filed u/s 153C ( without any changes). We are desperately trying to recover our data, once done, if needed we will again file the return.” ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 5 The additions were made by the AO in the hands of the assessee in quantum assessment , on the basis of incriminating material found and seized during the course of search proceedings conducted by Revenue u/s 132 of the 1961 Act, in the case of Genus Group of cases, Moradabad , on 30.07.2015 , vide separate assessment order(s) dated 28.12.2018 passed by AO u/s 153A read with Section 153C/144 of the 1961 Act, for both the assessment years 2014-15 and 2015-16. In the three separate penalty order(s) passed by the AO u/s 271(1)(b) of the 1961 Act for ay: 2014-15, it is mentioned that notices under Section 142(1) of the Act were issued by the AO on 14.09.2018, 10.10.2018 and 06.12.2018 respectively , and the said notices were claimed by the AO to have been duly served on the assessee, but it is alleged by the AO that the assessee failed to comply with the notices on the date fixed for compliance and no replies were filed by the assessee.The assessee was issued show cause notices by the AO, as to why penalty be not levied u/s 271(1)(b), and the AO had claimed to have served these SCN’s dated 10.10.2018, 20.11.2018 and 14.12.2018 on the assessee, but the AO has observed that there was no compliance by the assessee to the aforesaid show cause notice’s(SCN’s) , which led AO to levy penalty of Rs. 10000 each u/s 271(1)(b) for each default in not complying with each notice issued u/s 142(1) of the 1961 Act, vide three separate penalty orders for ay: 2014-15 , dated 01.11.2018, 03.12.2018 and 20.12.2018 respectively, for three separate default(s) made by assessee to comply with the three separate notices all issued u/s 142(1) of the 1961 Act, dated 14.09.2018, 10.10.2018 and 06.12.2018 respectively. Till these three aforesaid separate penalty orders were passed by the AO u/s 271(1)(b), the assessee has not filed any return of income , in compliance to notice dated 22.03.2018 u/s 153C issued by the AO, requiring assessee to file return of income , within 30 days of service of notice, nor any reply to questionnaires issued by the AO were filed by the assessee, except that the assessee filed power of attorney dated 21.11.2018 and Balance Sheet , Trading and Profit and Loss ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 6 account for the year ended 31.03.2014 through e-filing proceedings. Thereafter, subsequent to the levy of penalty u/s 271(1)(b) of Rs. 10000/- each by the AO, vide three afore-stated separate penalty orders dated 01.11.2018 , 03.12.2018 and 20.12.2018 respectively, the assessee filed reply through e-proceedings on 24.12.2018, as under: “Due to ranson ware attack we are unable to file return u/s 153C. we wish that our original digitally verified return be treated as if filed u/s 153C ( without any changes). We are desperately trying to recover our data, once done, if needed we will again file the return.” 4. Aggrieved by the penalty levied by the AO u/s 271(1)(b) of the 1961 Act vide three separate penalty orders levying penalty of Rs. 10000/- each for ay:2014-15, the assessee filed three separate appeal(s) before Ld. CIT (A) challenging all the three penalty orders passed by AO u/s 271(1)(b) of the 1961 Act for ay: 2014-15, which appeal(s) stood dismissed by ld. CIT(A) , vide common order dated 15.04.2019 , for all the three appeals filed by assessee for ay: 2014-15, by holding as under: “1. The presents appeals were E-filed on 07.02.2019 against the orders of the ITO, Ward-3(3), Chandauli passed on 01.11.2018, 03.12.2018 and 20.12.2018 respectively u/s 271(1)(b) of the I.T. Act. 2. In these cases, the appeals have been field against penalty order passed by the A.O. u/s 271(1)(b) of the IT Act for failure to make compliance of notices issued and served u/s 142(1) of the IT Act. (i) The Appeal No. 10328/CIT(A)/VNS/2018-19 has been filed against penalty order dated 01.11.2018 passed u/s 271(1)(b) of the IT Act passed for making non compliance to notice u/s 142(1) of the IT Act dated 14.09.2018 fixing the date of compliance on 24.09.2018 . The show cause notice u/s 274 r.w.s 271(1)(b) was issued on 10.10.2018 for making compliance on 16.10.2018, this notice was served through E-mail. A perusal of the penalty order reveals that no compliance to this notice was made. (ii) The Appeal No. 10329/CIT(A)/VNS/2018-19 has been field against penalty order dated 03.12.2018 passed u/s 271(1)(b) of the IT Act passed for making non compliance to notice u/s 142(1) of the IT Act dated 10.10.2018 fixing the date of compliance on 16.10.2018. The show cause notice u/s 274 r.w.s. 271(1)(b) was issued on 20.11.2018 for making compliance on 26.11;2018, this notice was served through E-mail. A perusal of penalty order reveals that no compliance to this notice was made,. ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 7 (iii) The appeal No. 10330/CIT(A)/VNS/2018-19 has been filed against penalty order dated 20.12.2018 passed u/s 271(1)(b) of the IT Act passed for making non compliance to notice u/s 142(1) of the I T Act dated 06.12.2018 fixing the date of compliance on 10.12.2018. The show cause notice u/s 274 r.w.s. 271(1)(b) was issued on 14.12.20189 for making compliance on 17.12.2018, this notice was served through E-mail. A perusal of penalty order reveals that no compliance to this notice was made. 3. During the course of appellate proceedings, it was submitted that penalty order have been passed without appreciating the facts and circumstances of the case in the correct perspective and that no notices were served. It was further submitted that no addition has been made in the assessment order passed. 4. (i) In this case, the A.O. has given his report that the penalty orders in respect to Appeal No. 10328/CIT(A)/VNS/2018-19 was served upon the assessee through speed post as well as E-mail (the A.O. has also enclosed the evidence of service of penalty order through E-mail). Thus, the A.O. has clearly brought on record that the appeal against the penalty order should have been preferred on or before 30.11.2018. However, the appeal has been filed on 07.02.2019 (ii) In this case, the A.O. has given his report that the penalty orders in respect to Appeal No. 10329/CIT(A)/VNS/2018-19 was served upon the assessee through speed post as well as Email (the A.O. has also enclosed the evidence of service of penalty order through E-mail). Thus, the A.O. has clearly brought on record that the appeal against the penalty order should have been preferred on or before 02.01.2019. However, the appeal has been filed on 07.02.2019 (iii)In this case, the A.O. has given his report that the penalty orders in respect to Appeal No. 10330/CIT(A)VNS/2018-19 was served upon the assessee through speed post as well as E-mail( the A.O. has also enclosed the evidence of service of penalty order through E-mail). Thus, the A.O. has clearly brought on record that the appeal against the penalty order should have been preferred on or before 19.01.2019. However, the appeal has been filed on 07.02.2019. 5.Thus it is clear that these appeals have been field in the three cases beyond the statutory prescribed dates and the appeals are accordingly, belated. No reasons have been furnished for filing belated appeal and no request of condonation of appeal have been filed. Further, the A.O. has clearly brought on record that the assessment order in this case has been passed ex-parte u/s 144 of the IT Act. In view of these facts, these appeals cannot be allowed and the appeals are dismissed.” As could be seen from the appellate order passed by ld. CIT(A), all the three appeals filed by the assessee against three separate penalty orders passed by the AO levying penalty u/s 271(1)(b) of Rs. 10000/- each for ay: 2014-15, were dismissed by ld. CIT(A) on the grounds that the appeal has been filed belatedly by the assessee, beyond the time prescribed u/s 249(2) of the 1961 Act , and no ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 8 sufficient cause was shown by assessee for filing these appeals belatedly , and also that the assessee did not filed any condonation application before ld. CIT(A) requesting for condoning the delay. The ld. CIT(A) further observed based on the report called from the AO that all the three show cause notice’s(SCN’s) issued by the AO u/s 274 read with Section 271(1)(b) for ay: 2014-15, in all the three cases for which penalty was finally levied by the AO u/s 271(1)(b) vide separate penalty orders, were duly served on the assessee, while the assessee did not made any compliance to such SCN’s. The ld. CIT(A) dismissed all the three appeals filed by the assessee for ay: 2014-15, vide common appellate order dated 15.04.2019 5. Aggrieved by the common appellate order passed by ld. CIT(A) dismissing all the three appeals filed by the assessee for ay: 2014-15, vide common appellate order dated 15.04.2019 for ay: 2014-15, the assessee has now filed three separate appeals for ay: 2014-15 before the tribunal , bearing number’s in ITA no. 152- 154/VNS/2019. These appeals were heard in physical mode in Open Court hearing. The ld. Counsel for the assessee opened arguments before the Division Bench and submitted that there were proceedings initiated against the assessee by the AO u/s 153C of the 1961 Act. There was a search and seizure operations conducted by Revenue on 30.07.2015 , u/s 132 of the 1961 Act in the case of Genus Group of case, Moradabad, and based on the allegation that certain incriminating material relating to the assessee were seized during aforesaid search operations, proceedings were initiated against the assessee , u/s 153C of the 1961 Act, by issuance of notice u/s 153C of the 1961 Act. It was submitted that the AO had issued three separate notices dated 14.09.2018, 10.10.2018 and 06.12.2018 respectively , all u/s 142(1) of the 1961 Act for ay: 2014-15 , calling for information/details from the assessee during proceedings conducted by AO u/s 153C , and the AO has levied three separate penalties of Rs. 10000/- each with respect to alleged non compliance by the assessee to the aforesaid three ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 9 notices issued by the AO u/s 142(1) dated 14.09.2018, 10.10.2018 and 06.12.2018, vide separate penalty order(s) dated 01.11.2018, 03.12.2018 and 20.12.2018 respectively. At the outset , ld. Counsel for the assessee submitted that similar matter came up before Varanasi-Circuit Bench of tribunal in assessee’s own case for ay’s: 2012-13, 2013-14 and 2016-17 respectively, and the tribunal in ITA Nos. 146 to 151 & 158 to 160 /VNS/2019 , vide common appellate order dated 16.10.2019 , was pleased to delete the penalty(s) of Rs. 10000/- each levied by the AO u/s 271(1)(b) of the 1961 Act for defaults in complying with notices issued u/s 142(1) of the 1961 Act, the copy of the common appellate order passed by tribunal, dated 16.10.2019 is filed by the assessee before the Division Bench, which is placed on record in the file. The Ld. Counsel for the assessee prayed that a view has already been taken by tribunal for ay: 2012-13, 2013-14 and 2016-17 deleting penalty under similar circumstances in assessee’s own case, and hence the penalty levied in all the three cases for ay: 2014-15 also need to be deleted, in view of rule of consistency. 5.2 The Ld. Sr. DR on the other hand, submitted that these three appeals for ay: 2014-15 arises from three separate orders passed by the AO levying penalty of Rs. 10,000/- each u/s 271(1)(b) of the 1961 Act , and the first appeal(s) filed by the assessee against the AO orders levying penalty u/s 271(1)(b) stood dismissed by ld. CIT(A), as the assessee did not comply with the notices issued by the AO u/s 142(1) of the 1961 Act. It was submitted by ld. DR that the assessee filed appeal before ld. CIT(A) belatedly beyond the time prescribed u/s 249(2) of the 1961 Act. It was submitted that the assessee neither showed any sufficient cause before ld. CIT(A), for not filing appeal(s) in time , nor any condonation application(s) were filed. It was also submitted by ld. Sr. DR that the assessee did not appeared before the AO , during the course of assessment proceedings, and the assessment order was a best judgment assessment order passed u/s 153A read with Section 153C/144 of the 1961 Act. The ld. Sr. DR submitted that the assessee is relying on ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 10 the appellate order dated 16.10.2019 passed by tribunal , for ay: 2012-13, 2013- 14 and 2016-17, wherein tribunal deleted penalty levied u/s 271(1)(b) of the 1961 Act, but the facts in those years are distinguishable than in the impugned ay: 2014-15, as in those assessment years , there were no additions made by the AO to the returned income and consequently returned income was accepted by the AO, while in the impugned assessment year 2014-15, there were seizure of incriminating material which belonged to the assessee and which reflected income pertaining to the assessee not disclosed in the return of income ,which ultimately led to the additions to the returned income of the assessee. It was submitted that the assessee did not file any details called for by the AO vide questionnaire issued by the AO along with notices issued by the AO u/s 142(1) of the 1961 Act, before the AO during the course of assessment proceedings. It was submitted that the AO wanted to confront assessee with incriminating material seized during the course of search operations conducted by Revenue in the case of Genus Group of cases on 30.07.2015 , and even summons u/s 131 were issued by the AO to the assessee , but no replies were given by the assessee before the AO during the course of assessment proceedings, nor the assessee appeared before the AO during assessment proceedings. The AO made additions to the income of the assessee, based on incriminating material found and seized during search operations conducted by Revenue u/s 132 of the 1961 Act, in Genus Group of cases, on 30.07.2015. It was submitted that the proceedings against the assessee were initiated u/s 153C of the 1961 Act, after recording of satisfaction that income as are reflected in the seized material pertains to the assessee. The ld. Sr. DR submitted that the assessee merely filed before the AO during assessment proceedings, power of attorney dated 21.11.2018 , Balance Sheet, Trading and Profit and Loss account, for the year ended 31.03.2014. There was no compliances of notice u/s 142(1) of the 1961 Act, as these documents were already available with the AO. It was submitted that merely filing of power of attorney cannot be ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 11 called that there was compliance of notice issued by AO u/s 142(1) of the 1961 Act, as the information called by the AO vide questionnaire was never submitted by the assessee , nor the assessee explained the contents of seized material. It was also submitted that quantum appeals filed by the assessee against the assessment framed by the AO for ay: 2014-15 , are still pending for disposal before ld. CIT(A). The ld. Sr. DR would also argue that substantial additions were made in ay: 2014- 15 in the hands of the assessee, vide assessment framed by the AO , based on incriminating material seized during search operations in the case of Genus group of cases, Moradabad, and the assessee did not co-operated in assessment proceedings as the assessee did not comply with the notices issued by the AO u/s 142(1) of the 1961 Act, which led to levying of penalty by AO u/s 271(1)(b) of the 1961 Act which is justifiable and needs to be upheld. In the alternative, the ld. Sr. DR submitted that the matter can be restored to the file of ld. CIT(A) for fresh adjudication , as the quantum appeals against assessment framed by the AO , are pending for disposal before ld. CIT(A). 5.3 The ld. Counsel for the assessee submitted in rejoinder, that in the cases decided by the tribunal for ay: 2012-13, 2013-14 and 2016-17, there were delay in filing of appeals as alleged by Revenue. The ld. Counsel for the assessee also submitted that quantum appeals against assessment framed by the AO , are pending for disposal before ld. CIT(A). It was submitted that facts in the impugned assessment year 2014-15 are identical to the facts in ay: 2012-13, 2013-14 and 2016-17, and reliance was placed on the tribunal order dated 16.10.2019 deleting penalty for these three ay’s: 2012-13, 2013-14 and 2016-17 , and prayers were made that rule of consistency be followed and penalty levied u/s 271(1)(b) vide three separate orders be also deleted . 6. We have heard both the rival parties and perused the material on record , including order passed by tribunal in assessee’s own case for ay’s: 2012-13, 2013- 14 and 2016-17. We have observed that there was a search and seizure operations ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 12 conducted by Revenue u/s 132 of the 1961 Act against Genus Group of Cases, Moradabad, on 30.07.2015. The ld. ACIT, Moradabad , sent a satisfaction note to the AO of the assessee , recorded in the case of M/s. Kailash Coal and Coke Limited, vide letter F.No. ACIT/CC/MBD/Genus/153/2017-18/785 dated 09.03.2018, in which it is stated that there was a search and seizure operations conducted by Revenue u/s 132 of the 1961 Act against Genus Group of Cases, Moradabad, on 30.07.2015, in which certain incriminating documents which belongs to the assessee, namely Shri Anand Todi, Prop:Shree Ganesh Coal Enterprises, Chandasi, Chandauli were found and seized. The details of the seized documents and comments of ld. ACIT,Central Circle, Moradabad , are reproduced by the AO in its assessment order dated 28.12.2018 passed u/s 153A read with Section 153C/144 of the 1961 Act. On perusal of the satisfaction note sent by ld. ACIT, Central Circle, Moradabad, and material available on record, the AO of the assessee found that these documents pertain to the assessee namely Shri Anand Todi, 216, Kalimandir, Ravinagar, Mughalsarai, Chandauli , and it has bearing on the determination/computation of the total income of the assessee, for ay: 2014-15. Thus, based on information, the AO was of the view that it is a fit case for action u/s 153C of the 1961 Act. Accordingly, the AO issued notice dated 22.03.2018 u/s 153C of the 1961 Act, which was claimed by the AO to have been duly served on the assessee, requiring the assessee to file return of income duly verified for ay: 2014-15 within 30 days from the date of service of the notice. But the assessee did not filed its return of income , in pursuance to the notice dated 22.03.2018. The AO issued notice dated 22.06.2018 u/s 142(1) of the 1961 Act, for compliance on 09.07.2018, but there was no compliance on part of the assessee. The AO issued further notice dated 14.09.2018 u/s 142(1) , for compliance on 24.09.2018, but again none attended on behalf of the assessee.The AO issued fresh notice dated 10.10.2018 u/s 142(1) , for compliance on 16.10.2018, but again none attended on behalf of the assessee. The AO issued penalty notice dated 10.10.2018 u/s ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 13 271(1)(b) of the 1961 Act for failure to comply with notice dated 14.09.2018 u/s 142(1) issued by the AO to the assessee, the date of compliance in the penalty notice dated 10.10.2018 was fixed for 16.10.2018 , but there was again no compliance by the assessee. The AO issued penalty notice dated 20.11.2018 u/s 271(1)(b) of the 1961 Act for failure to comply with notice dated 10.10.2018 u/s 142(1) issued by the AO to the assessee, the date of compliance in the penalty notice dated 20.11.2018 was fixed for 26.11.2018 , but there was again no compliance by the assessee. The AO again issued notice dated 20.11.2018 u/s 142(1) of the 1961 Act , fixing the date for compliance on 26.11.2018 . The assessee filed power of attorney dated 21.11.2018 and Balance Sheet, Trading , Profit and Loss Account for the year ended on 31.03.2014 through e-filing proceedings , but no other details as were called for by the AO vide questionnaire were submitted by the assessee. The AO issued fresh notice dated 06.12.2018 u/s 142(1) of the 1961 Act , for compliance on 10.12.2018. The AO also simultaneously issued summons dated 06.12.2018 , u/s. 131 of the 1961 Act , for compliance on 10.12.2018. There was no compliance by the assessee , either to the notice dated 06.12.2018 issued by the AO u/s 142(1) of the 1961 Act, nor was there any compliance by the assessee to the summons dated 06.12.2018 issued by the AO , u/s 131 of the 1961 Act. The AO issued penalty notice dated 14.12.2018 u/s 271(1)(b) for non compliance of notice dated 06.12.2018 u/s 142(1) of the 1961 Act, which was again not complied with by the assessee. The AO was pleased to pass three separate penalty orders dated 01.11.2018 , 03.12.2018 and 20.12.2018 respectively , imposing penalty of Rs. 10000/- each , u/s 271(1)(b) all for ay: 2014-15 , for non compliance by the assessee of the aforesaid three notice(s) issued by AO u/s 142(1), dated 14.09.2018, 10.10.2018 and 06.12.2018 respectively.The assessee filed reply on 24 th Dec. 2018 through e-proceedings, as under: ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 14 “Due to ranson ware attack we are unable to file return u/s 153C. we wish that our original digitally verified return be treated as if filed u/s 153C ( without any changes). We are desperately trying to recover our data, once done, if needed we will again file the return.” The additions were made by the AO in the hands of the assessee, on the basis of incriminating material found and seized during the course of search proceedings conducted by Revenue u/s 132 of the 1961 Act, in the case of Genus Group of cases, Moradabad , on 30.07.2015, vide assessment order dated 28.12.2018 passed by AO u/s 153A read with Section 153C/144 of the 1961 Act, for assessment year 2014-15 . In the three separate penalty order(s) passed by the AO u/s 271(1)(b) of the 1961 Act for ay: 2014-15, it is mentioned that notices under Section 142(1) of the Act were issued by the AO on 14.09.2018, 10.10.2018 and 06.12.2018 respectively , and the said notices were claimed by the AO to have been duly served on the assessee, but the assessee failed to comply with the notices on the date fixed for compliance and no replies were filed by the assessee.The assessee was issued three show cause notices(SCN’s) by the AO for three different defaults for non compliance of three separate notices issued u/s 142(1) of the 1961 Act , for ay: 2014-15, as to why penalty be not levied u/s 271(1)(b), and the AO had claimed to have served these three separate SCN’s on the assessee, but the AO has observed that there was no compliance by the assessee to the aforesaid three show cause notice’s , which led AO to levy penalty of Rs. 10000 each u/s 271(1)(b) , vide three separate orders for ay: 2014-15 dated 01.11.2018, 03.12.2018 and 20.12.2018 respectively, for three separate default(s) made by assessee to comply with the three separate notices all issued u/s 142(1) of the 1961 Act, dated 14.09.2018, 10.10.2018 and 06.12.2018 respectively. Till these three aforesaid separate penalty orders were passed by the AO u/s 271(1)(b), the assessee has not filed any return of income , in compliance to notice dated 22.03.2018 u/s 153C issued by the AO, requiring assessee to file return of income , with in 30 days of service of notice, nor any reply to questionnaires issued by the AO were filed by ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 15 the assessee, except that the assessee filed power of attorney dated 21.11.2018 and Balance Sheet , Trading and Profit and Loss account for the year ended 31.03.2014 through e-filing proceedings. Thereafter, subsequent to the levy of three penalties u/s 271(1)(b) of Rs. 10000/- each , vide three afore-stated penalty orders by the AO dated 01.11.2018 , 03.12.2018 and 20.12.2018 respectively, the assessee filed reply through e-proceedings on 24.12.2018, as under: “Due to ranson ware attack we are unable to file return u/s 153C. we wish that our original digitally verified return be treated as if filed u/s 153C ( without any changes). We are desperately trying to recover our data, once done, if needed we will again file the return.” It is also pertinent to mention that while imposing three different penalties of Rs. 10000/- each , u/s 271(1)(b) of the 1961 Act, the AO issued only SCN for each default, wherein the assessee disputed to have received this solitary SCN and there was no representation of the assessee before the AO during penalty proceedings as is emerging from penalty order being ex-parte order, and the AO proceeded to levy penalty of Rs. 10000 each u/s 271(1)(b) , without giving any further opportunity to the assessee. The assessee filed first appeal with ld. CIT(A) against all the three penalty orders passed by AO u/s 271(1)(b) of the 1961 Act ex-parte, for ay: 2014-15. The assessee challenged that no SCN u/s 274 read with Section 271(1)(b) as alleged by the AO to have been issued on 10.10.2018, 20.11.2018 and 14.12.2018 respectively , were ever served on the assessee , with respect to three alleged defaults of non compliance of notices u/s 142(1), dated 14.09.2018, 10.10.2018 and 14.12.2018 respectively , which ultimately culminated into three different penalty orders u/s 271(1)(b) dated 01.11.2018,03.12.2018 and 20.12.2018 respectively , levying penalty of Rs. 10000/- each. It is observed that ld. CIT(A) called for report from AO as to the service of SCN’s u/s 274 read with Section 271(1)(b) of the 1961 Act ,to which AO reported that all these three SCN’s were ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 16 served on the assessee. It is also observed that no other notice was issued by the AO u/s 274 read with Section 271(1)(b), except only one notice in each of three penalties levied u/s 271(1)(b) of the 1961 Act dated 10.10.2018, 20.11.2018 and 14.12.2018 respectively , for ay: 2014-15 . The assessee is disputing to have even not received the solitary notice issued by the AO u/s 274 read with Section 271(1)(b) of the 1961 Act, before levying penalty u/s 271(1)(b). It is also clear from all the three penalty orders passed by ld. AO u/s 271(1)(b), for ay: 2014-15 , that it was passed ex-parte , as the assessee never appeared before the AO and no submissions in its defense was filed by the assessee. The ld. CIT(A) did not admitted the appeal of the assessee, as the appeal was held to be filed by the assessee beyond the time allowed u/s 249(2) by ld. CIT(A), based on the report of the AO. The appellate order passed by ld. CIT(A) is reproduced above in this order, which is an order dismissing appeal of the assessee in limine due to non admission of appeal by ld CIT(A), without discussing the issue’s in appeal on merits. The ld. CIT(A) observed that the assessee has neither shown sufficient cause for filing of its appeal belatedly beyond the time prescribed u/s 249(2) , nor any application for condonation of appeal is filed by the assessee. We have observed from the Form No. 35 filed by the assessee with ld. CIT(A) which is placed on record in file, that it is claimed by the assessee , that all the three penalty orders passed by the AO u/s 271(1)(b) were received by the assessee , on 31.01.2019, and the appeal was filed before ld. CIT(A) on 07.02.2019, which is within 7 days of receiving of penalty orders. This is a disputed fact which required proper adjudication after hearing the assessee , as it has a bearing on maintainability of the appeal before ld. CIT(A) . Further, the assessee has also raised an issue as to non receipt of the SCN’s issued by AO in all three cases for non compliance(s) of notice u/s 142(1) , for ay: 2014-15 , while AO is alleging that the SCN’s were duly served, which dispute touches upon the principles of audi alteram partem i.e. no body should be condemned un-heard . As could be seen , the AO issued only one notice u/s 274 ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 17 read with Section 271(1)(b) in each of the three cases where penalty u/s 271(1)(b) was levied, for ay: 2014-15, before prejudicing the assessee, which SCN itself is disputed by the assessee to have not been served on the assessee as the assessee has denied that he was never served with SCN’s, which also touches upon the adherence to the principles of natural justice. It is also observed that tribunal passed a common order dated 16.10.2019, for ay: 2012-13, 2013-14 and 2016-17, wherein penalty levied u/s 271(1)(b) by AO and confirmed/upheld by ld. CIT(A) stood deleted, but we have observed that factual matrix in the case before us for impugned assessment year 2014-15 differs from the facts as are emerging from records for ay: 2012-13 , 2013-14 and 2016-17 , as in those years , there were no additions made by the AO while framing assessment u/s 153C read with Section 144 and the returned income stood accepted, while in the year under consideration viz. ay: 2014-15 , there are finding by the AO that there are incriminating material belonging to the assessee which was found during search operations conducted by Revenue in the case of Genus Group of cases, on 30.07.2015 u/s 132 of the 1961 Act, which has bearing on determination/computation of income of the assessee for ay: 2014-15, and the AO wanted to confront assessee with the seized material , but the assessee did not co- operated with Revenue and no details were filed by the assessee, for ay: 2014-15 in compliance to questionnaire/directions issued by the AO, which ultimately led to additions being made by the AO while framing quantum assessment for ay: 2014-15. Even, the assessee did not appeared before the AO in response to summons issued by the AO u/s 131 of the 1961 Act. The appeal against quantum assessment filed by the assesse is pending before ld. CIT(A) for adjudication. Thus, the order dated 16.10.2019 passed by tribunal is clearly distinguishable on the facts . We are of the considered view in the impugned case before us one more opportunity be provided to assessee to bring on record complete details/evidences in support of its contentions . Thus, based on totality of facts ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 18 and circumstances of the case, we are setting aside the matter to the file of ld. CIT(A) for fresh adjudication of the issue. Further, if advised, the assessee can file condonation application before ld. CIT(A) explaining sufficient cause, and it is for ld. CIT(A) to adjudicate the admissibility of appeal or otherwise , on merits in accordance with law. We clarify that we have not commented on the merits of the issue in these three appeals , for ay: 2014-15 , and all the contentions are kept open. Thus, the assessee’s three appeal(s) in ITA No. 152-1154/VNS/2019 , for ay: 2014-15 , are allowed for statistical purposes. We order accordingly. 7. In the result , all the three appeals in ITA no. 152-154/VNS/2019 filed by assessee , for ay: 2014-15 , are allowed for statistical purposes. 8. Since the issue involved in assessee’s appeal in ITA no(s). 152-154/VNS/2019 , for ay: 2014-15, are similar to issues involved in assessee’s appeal in ITA no(s). 155 to 157/VNS/2019 , for ay:2015-16, our decision in ITA Nos. 152-154/VNS/ 2019 shall apply mutatis mutandis to appeals in ITA nos. 155 to 157/VNS/2019, for ay: 2015-16.We order accordingly. 9. In the result, all the six appeal(s) filed by the assessee in ITA Nos. 152 to 157/VNS/2019, for ay: 2014-15 and 2015-16 respectively, are allowed for statistical purposes. Order pronounced on 27/04/2022 at Allahabad, U.P.. Sd/ - Sd/- Sd/-Sd/- [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27/04/2022 Allahabad KD Azmi ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 19 Copy forwarded to: 1. Appellant – Shri Anand Todi, 76, Defence Enclave , Vikas Marg, Delhi-110092 2. Respondent –The Income Tax Officer, Ward 3(3), Chandauli, U.P. 3. CIT(A) –Varanasi, U.P. 4. CIT-Chandauli/Varanasi, U.P. 5. The ld. Sr. DR, ITAT, Varanasi , U.P. By order Assistant Registrar ITA Nos.152, 153, 154, 155, 156 &157/VNS/2019 Assessment Years: 2014-15 & 2015-16 Shri Anand Todi 20