Grijesh Tiwari, Allahabad V. ITO 2 (1), Allahabad

ITA 21/ALLD/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6852 (ITAT-ALLAHABAD)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-09-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 28-02-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SRISHTI GUPTA
• Section: 271(1)(c); 143(3); 250; 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD “SMC” BENCH, ALLAHABAD BEFORE SHRI ABY T. VARKEY, JM आयकर अपील सं/ I.T.A. Nos. 21 & 22/Alld/2023 (निर्धारण वर्ा / Assessment Year: 2012-13) Grijesh Tiwari 22-A/16-A, T. B. Sapru Road, Civil Lines, Allahabad-211001. बिधम/ Vs. ITO-2(1) Income Tax Office, 38 M. G. Marg, Allahabad- 211001. स्थधयी लेखध सं./जीआइआर सं./PAN/GIR No. : AKKPT9797R (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) सुनवाई की तारीख / Date of Hearing: 14/09/2023 घोषणा की तारीख /Date of Pronouncement: 04/10/2023 आदेश / O R D E R PER ABY T. VARKEY, JM: ITA. NO. 21/Alld/2023 for AY. 2012-13 This is an appeal preferred by the assessee against the order of the Ld. CIT(A)/NFAC, Delhi dated 17.02.2023 for AY. 2012-13 confirming the penalty levied u/s 271(1)(c) of the Income Tax Act, 1961 (hereinafter “the Act”). 2. At the outset, the Ld. AR of the assessee, Ms. Srishti Gupta submitted that the impugned order of the Ld. CIT(A) is an ex-parte order and drew my attention to the impugned order wherein it is noted that the Ld. CIT(A) has passed an ex-parte order. In this regard, it is noted that the Ld. CIT(A) has asserted that he has given opportunity to the assessee by issuing the notice thrice on 03.05.2022, 05.09.2022 and 06.02.2023 on the email address given by assessee and assessee did not respond. Therefore, he dismissed the appeal of assessee.. However, according to the Ld. AR, the assessee did not receive the notice issued due to technical glitches and due to which the assessee was in the dark Assessee by: Ms. Srishti Gupta Revenue by: Shri A. K. Singh (Sr. DR) ITA No.21 & 22/Alld/2023 A.Y. 2012-13 Grijesh Tiwari 2 about the notice of hearing. Thus, assessee asserted that there was reasonable cause for non-adherence to the notice of hearing. It is further noted that the Ld. CIT(A) has not passed the order in accordance to sub-section (6) of section 250 of the Income Tax Act, 1961 (hereinafter “the Act”). And the Ld. AR has undertaken to diligently participate in the proceedings before Ld CIT(A) and also file written submission/relevant documents to substantiate the grounds of appeal raised before the First Appellate Authority. Taking note the aforesaid facts discussed (supra), I am inclined to set aside the impugned order of the Ld. CIT(A) and restore the appeal back to his file for fresh adjudication. And the Ld. CIT(A) to decide the appeal on merits by adjudicating the grounds of appeal raised by assessee as per section 250(6) of the Act, in accordance to law. In the result, the appeal filed by the assessee is allowed for statistical purposes. ITA. NO.22/Alld/2023 This is an appeal preferred by the assessee against the order of the Ld. CIT(A)/NFAC dated 17.02.2023 for AY. 2012-13 confirming the penalty levied of Rs.10,000/- u/s 271(1)(b) of the Act. 3. At the outset, the Ld. AR of the assessee brought to my notice that the penalty has been levied for non-compliance of notice u/s 142(1) of the Act dated 06.11.2019. And therefore, he issued penalty notice u/s 274 r.w.s 271(1)(b) of the Act and pursuant to which assessee filed his reply. However, AO was not satisfied with the reply of the assessee, and levied penalty of Rs.10,000/-, which action of the AO was confirmed by the Ld. CIT(A). In this regard, it was brought to my notice that the assessment order has been passed by the AO u/s ITA No.21 & 22/Alld/2023 A.Y. 2012-13 Grijesh Tiwari 3 143(3) r.w.s. 147 of the Act on 31.12.2019, by acknowledging the fact that the assessee had filed the written submission/reply/relevant documents on 09.12.2019 as well as replied on 05.11.2019 (refer para no. 4 of the assessment order). The AO has discussed about the reply given by assessee at para no. 5 of the assessment order and noted that the assessee had filed replies/submission, bank statement, comparative financial statement and other relative documentary evidence and furnished replies to his queries. And thereafter, he has framed the assessment u/s 143(3) of the Act on 31.12.2019. In the aforesaid facts and circumstances discussed (supra), according to me, assessee had made the compliance though after some delay well before the assessment order was framed as noted (supra). Therefore, it is not the case of non-compliance on the part of the assessee per-se to the notice issued on 06.11.2019. Thus, it is noted that the assessee had complied but belatedly. Hence, taking note that the AO has framed the assessment after considering the reply/written submission filed by the assessee, therefore, the omission on the part of the assessee to have not replied to the specific notice dated 06.11.2019 does not warrant penalty. Accordingly, the penalty levied by the AO u/s 271(1)(b) of the Act is directed to be deleted. 4. In the result, ITA. No. 21/Alld/2023 of the assessee is allowed for statistical purposes and ITA. No. 22/Alld/2023 appeal of the assessee is allowed. Order pronounced in the open court on this 04/10/2023. Sd/- (ABY T. VARKEY) JUDICIAL MEMBER Allahabad दिनांक Dated : 04/10/2023. Vijay Pal Singh, (Sr. PS) ITA No.21 & 22/Alld/2023 A.Y. 2012-13 Grijesh Tiwari 4 Copy forwarded to: 1. Appellant – 2. Respondent – 3. CIT(A) , Allahabad 4. CIT 5. DR - By order Assistant Registrar