Shri Vinod Kumar Mishra, Lucknow V. ITO Ward 1(3)(5), Kanpur

ITA 270/LKW/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 4451 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 25-12-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 04-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Source of fund; Right to appeal; Reason to believe; Borrowed satisfaction; Set aside
• Section: 147; 148; 144; 153A; 234B; 143(2); 69A; 271B; 44AB

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘A’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A. Nos.270 to 272/Lkw/2023 Assessment Years: 2014-15 to 16-17 I.T.A. Nos.268 & 269/Lkw/2023 Assessment Years: 2017-18 & to 18-19 I.T.A. Nos.273 to 276/Lkw/2023 Assessment Years: 2014-15 to 17-18 Shri Vinod Kumar Mishra, 81, Kanpur Road, Vishnulok, Lucknow. PAN:AFTPM2934F Vs. Income Tax Officer, Ward-1(3)(5), Kanpur. (Appellant) (Respondent) O R D E R PER BENCH: (A) I.T.A. No.270, 271, 272, 268 and 269/Lkw/2023 are in respect of assessment years 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19 respectively. These appeals are in respect of the quantum additions made by the Assessing Officer in separate assessment orders for the respective assessment years. Assessment order for the assessment year 2015-16 was passed by the Assessing Officer u/s 147 r.w.s. 144 read with section 144B of the Income Tax Act, 1961 (“IT Act” for short). Rest of the assessment order Appellant by Shri B. P. Yadav, Advocate Respondent by Shri S. H. Usmani, CIT (D.R.) Shri Sanjeev Krishna Sharma Addl. CIT (D.R.) 2 were passed u/s 147 r.w.s. 144B of the Act. The assessee filed appeals against the aforesaid assessment order for assessment years 2014-15 to 2018-19 in National Faceless Appeal Centre (“NFAC” for short). By separate impugned appellate orders each dated 10/08/2023 vide DIN ITBA/NFAC/S/250/2023-24/1055026597(1) for assessment year 2014-15, DIN ITBA/NFAC/S/250/2023-24/1055026769(1) for assessment year 2015- 16, DIN ITBA/NFAC/S/250/2023-24/1055026932(1) for assessment year 2016-17, DIN ITBA/NFAC/S/250/2023-24/1055027040(1) for assessment year 2017-18 and DIN ITBA/NFAC/S/250/2023-24/1055027131(1) for assessment year 2018-19, the learned CIT(A) dismissed the assessee’s appeals. These appeals were dismissed ex-parte qua the assessee. The present appeals before us vide aforesaid I.T.A. Nos. 270, 271, 272, 268 and 269/Lkw/2023 have been filed by the assessee against the aforesaid impugned appellate orders each dated 10/08/2023. (A.1) Grounds of appeal are as under in respect of aforesaid appeal vide I.T.A. Nos. 270, 271, 272, 268 and 269/Lkw/2023: I.T.A. No.270/Lkw/2023 “1. The Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld. CIT-A) erred on facts and in law in dismissing the appeal of the appellant by passing an ex-parte order without providing reasonable opportunity to the appellant to have his say on the merit of the addition made by the Assessing Authority. 2. The Ld. CIT-A was not at all justified in dismissing the appeal of the appellant by passing an ex-parte order without adjudicating the merit of the case and hence the matter deserves to be remand back to the office of the Ld. CIT(A) for proper adjudication of the issue involved in the appeal after considering the submissions of the appellant. 3 WITHOUT PREJUDICE TO THE GROUND Nos. 1 & 2 ABOVE: 3. The Ld. CIT-A erred on facts and in law in appreciating the fact that the assessment order was passed by relying upon the notice u/s 148 of the Act which was issued on the basis of borrowed satisfaction and without appreciating the fact and the law that the concerned officer while recording the reasons for the issuance of the notice u/s 148 of the Act did not apply his own and independent mind to form the belief that there has been escapement of assessment of income of Rs. 1,07,66,788/-. 4. The Ld. CIT-A erred on facts and in law in not appreciating that the notice u/s 148 of the Act was issued on the premise that there had been cash deposits made into the bank account of the appellant, which is not correct and contrary to the facts of the case of the appellant. 5. The Ld. CIT-A erred on facts and in law in not appreciating the law that the Assessing Authority is required to provide a copy of the reasons recorded for the issuance of notice u/s 148 of the Act along with the notice issued u/s 148 of the Act as well as a copy of the approval granted by the competent authority to initiate the proceedings u/s 148 of the Act. 6. The Ld. CIT-A erred on facts and in law in confirming the addition of Rs.1,07,66,788/- made in the hands of the appellant by treating the amount of Rs.1,07,66,788/- as unexplained money u/s 69A of the Act by grossly ignoring the fact that all the deposits made into the bank accounts of the appellant were from the disclosed sources and stood duly recorded in the books of accounts of the appellant. 7. On the facts stated in the statement of facts, the Ld. CIT-A was not at all justified in confirming the addition of Rs.1,07,66,788/- made in the hands of the appellant and also on the ground that the addition has been made purely on the basis of presumption, conjecture and surmise and hence addition so made deserves to be deleted. 8. The Ld. CIT-A erred on facts and in law in confirming the charging interest u/s 234A, 234B and 234C and also erred in 4 confirming the initiation of penalty proceedings u/s 271(1)(c), 271(1)(b) and 271B of the I.T. Act, 1961.” I.T.A. No.271/Lkw/2023 “1. The Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld. CIT-A) erred on facts and in law in dismissing the appeal of the appellant by passing an ex-parte order without providing reasonable opportunity to the appellant to have his say on the merit of the addition made by the Assessing Authority. 2. The Ld. CIT-A was not at all justified in dismissing the appeal of the appellant by passing an ex-parte order without adjudicating the merit of the case as the impugned assessment order has been passed without considering the submissions of the appellant. 3. The Ld. CIT-A erred on facts and in law in not appreciating that no notice u/s 143(2) of the Act was issued to the appellant in the present case, which is sin qua non for framing an assessment order u/s 143(3)/147 of the Act. 4. The Ld. CIT-A erred on facts and in law in not appreciating that the impugned assessment order was passed in consequence of the notice u/s 148 of the Act, which was issued on the basis of the borrowed satisfaction as the issuing authority while recording the reasons for the issuance of the notice u/s 148 of the Act did not apply his own and independent mind to form the belief that there had been escapement of assessment of income of Rs.3,29,58,528/-. 5. The Ld. CIT-A erred on facts and in law in not appreciating the law that the Assessing Authority is required to provide a copy of the reasons recorded for the issuance of notice u/s 148 of the Act along with the notice issued u/s 148 of the Act as well as a copy of the approval granted by the competent authority to initiate the proceedings u/s 148 of the Act. 6. The Ld. CIT-A erred on facts and in law in confirming the addition of Rs.3,29,58,528/- made by the Ld. Assessing 5 Authority by treating deposits made into his bank accounts as unexplained money u/s 69A of the Act by grossly ignoring the fact that all the deposits made into the bank accounts of the appellant were made from the disclosed sources of income. 7. On the facts stated in the statement of facts, the Ld. CIT-A was not at all justified in confirming the addition of Rs.3,29,58,528/- made in the hands of the appellant and also without appreciating that the addition made in the present case was purely based on presumption, conjecture and surmise, which does not have any legal footing to stand and hence deserves to be deleted. 8. The Ld. CIT-A erred on facts and in law in confirming the charging interest u/s 234A, 234B and 234C and also erred in confirming the initiation of penalty proceedings u/s 271(1)(C), 271(1)(b) and 271B of the I.T. Act, 1961.” I.T.A. No.272/Lkw/2023 “1. The Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld. CIT-A) erred on facts and in law in dismissing the appeal of the appellant by passing an ex-parte order without providing reasonable opportunity to the appellant to have his say on the merit of the addition made by the Assessing Authority. 2. The Ld. CIT-A was not at all justified in dismissing the appeal of the appellant by passing an ex-parte order without adjudicating the merit of the case as the impugned assessment order has been passed without considering the submissions of the appellant. 3. The Ld. CIT-A erred on facts and in law in not appreciating that the impugned assessment order was passed in consequence of the notice u/s 148 of the Act, which was issued on the basis of the borrowed satisfaction as the issuing authority while recording the reasons for the issuance of the notice u/s 148 of the Act did not apply his own and independent mind to form the belief that there had been escapement of assessment of income of Rs.6,58,93,469/-. 6 4. The Ld. CIT-A erred on facts and in law in not appreciating the law that the Assessing Authority is required to provide a copy of the reasons recorded for the issuance of notice u/s 148 of the Act along with the notice issued u/s 148 of the Act as well as a copy of the approval granted by the competent authority to initiate the proceedings u/s 148 of the Act.- 5. The Ld. CIT-A erred on facts and in law in confirming the addition of Rs.6,58,93,469/-made by the Ld. Assessing Authority by treating deposits made into his bank accounts as unexplained money u/s 69A of the Act by grossly ignoring the fact that all the deposits made into the bank accounts of the appellant were made from the disclosed sources of income. 6. On the facts stated in the statement of facts, the Ld. CIT-A was not at all justified in confirming the addition of Rs.6,58,93,469/- made in the hands of the appellant and also without appreciating that the addition made in the present case was purely based on presumption, conjecture and surmise, which does not have any legal footing to stand and hence deserves to be deleted. 7. The Ld. CIT-A erred on facts and in law in confirming the charging interest u/s 234A, 234B and 234C and also erred in confirming the initiation of penalty proceedings u/s 271(1)(c), 271(1)(b) and 271B of the I.T. Act, 1961.” I.T.A. No.268/Lkw/2023 “1. The Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld. CIT-A) erred on facts and in law in dismissing the appeal of the appellant by passing an ex-parte order without providing reasonable opportunity to the appellant to have his say on the merit of the addition made by the Assessing Authority. 2. The Ld. CIT-A was not at all justified in dismissing the appeal of the appellant by passing an ex-parte order without adjudicating the merit of the case as the impugned assessment order has been passed without considering the submissions of the appellant. 7 3. The Ld. CIT-A erred on facts and in law in not appreciating that the impugned assessment order was passed in consequence of the notice u/s 148 of the Act, which was issued on the basis of the borrowed satisfaction as the issuing authority while recording the reasons for the issuance of the notice u/s 148 of the Act did not apply his own and independent mind to form the belief that there had been escapement of assessment of income of Rs.2,67,23,089/-. 4. The Ld. CIT-A erred on facts and in law in not appreciating the law that the Assessing Authority is required to provide a copy of the reasons recorded for the issuance of notice u/s 148 of the Act along with the notice issued u/s 148 of the Act as well as a copy of the approval granted by the competent authority to initiate the proceedings u/s 148 of the Act. 5. The Ld. CIT-A erred on facts and in law in confirming the addition of Rs.2,67,23,089/-made by the Ld. Assessing Authority by treating deposits made into his bank accounts as unexplained money u/s 69A of the Act by grossly ignoring the fact that all the deposits made into the bank accounts of the appellant were made from the disclosed sources of income. 6. On the facts stated in the statement of facts, the Ld. CIT-A was not at all justified in confirming the addition of Rs.2,67,23,089/- made in the hands of the appellant and also without appreciating that the addition made in the present case was purely based on presumption, conjecture and surmise, which does not have any legal footing to stand and hence deserves to be deleted. 7. The Ld. CIT-A erred on facts and in law in not appreciating that the returned income of Rs.24,79,250/- was arrived at after duly considering the deposits made into the bank accounts while filing the return of income u/s 139/148 of the Act. 8. The Ld. CIT-A erred on facts and in law in not appreciating that the Ld. A.O. had wrongly invoked the provisions of section 115BBE of the Act for computing the tax liability against the appellant.” 8 I.T.A. No.269/Lkw/2023 “1. The Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld. CIT-A) erred on facts and in law in dismissing the appeal of the appellant by passing an ex-parte order without providing reasonable opportunity to the appellant to have his say on the merit of the addition made by the Assessing Authority. 2. The Ld. CIT-A was not at all justified in dismissing the appeal of the appellant by passing an ex-parte order without adjudicating the merit of the case as the impugned assessment order has been passed without considering the submissions of the appellant. 3. The Ld. CIT-A erred on facts and in law in not appreciating that the impugned assessment order has been passed by the Ld. A.O. without issuing any notice u/s 143(2) of the Act, issuing of which is sin qua non for framing any order u/s 147/143(3) of the Act and hence the impugned assessment order deserves to be quashed. 4. The Ld. CIT-A erred on facts and in law in not appreciating that the impugned assessment order was passed in consequence of the notice u/s 148 of the Act, which was issued on the basis of the borrowed satisfaction as the issuing authority while recording the reasons for the issuance of the notice u/s 148 of the Act did not apply his own and independent mind to form the belief that there had been escapement of assessment of income of Rs.8,00,50,399/-. 5. On the undernoted reasons, the Ld. CIT-A erred on fact and in law in not appreciating that the notice issued u/s 148 of the Act is bad in law and illegal- Because the notice u/s 148 of the Act was issued on the reason of escapement of assessment on account of cash deposits of aggregating to Rs.3,94,71,987/-made in the Punjab National Bank of the appellant without appreciating the fact that there was no such cash deposits made into the Punjab National Bank 9 and hence there exists no such reason to believe for resorting to invoking of section 148 of the Act against the appellant. Because the Income Tax Officer Ward 1(3)(5), Kanpur did not have jurisdiction to issue any such notice u/s 148 of the Act. Because the notice u/s 148 of the Act was issued on the basis of borrowed satisfaction and without appreciating the fact and the law that the concerned officer while recording the reasons for the issuance of the notice u/s 148 of the Act did not apply his own and independent mind to form the belief that there has been escapement of assessment of income of Rs.3,94,71,987/-. 6. The Ld. CIT-A erred on facts and in law in not appreciating the law that the Assessing Authority is required to provide a copy of the reasons recorded for the issuance of notice u/s 148 of the Act along with the notice issued u/s 148 of the Act as well as a copy of the approval granted by the competent authority to initiate the proceedings u/s 148 of the Act. 7. The Ld. CIT-A erred on facts and in law in confirming the addition of Rs.8,00,50,399/- made by the Ld. Assessing Authority by treating deposits made into his bank accounts as unexplained money u/s 69A of the Act by grossly ignoring the fact that all the deposits made into the bank accounts of the appellant were made from the disclosed sources of income. 8. On the facts stated in the statement of facts, the Ld. CIT-A was not at all justified in confirming the addition of Rs.8,00,50,399/- made in the hands of the appellant and also without appreciating that the addition made in the present case was purely based on presumption, conjecture and surmise, which does not have any legal footing to stand and hence deserves to be deleted. 9. The Ld. CIT-A erred on facts and in law in not appreciating that the returned income of Rs.14,37,910/-was arrived at after duly considering the deposits made into the bank accounts while filing the return of income u/s 148 of the Act. 10. The Ld. CIT-A erred on facts and in law in not appreciating that the Ld. A.O. had wrongly invoked the provisions of section 10 115BBE of the Act for computing the tax liability against the appellant.” (B) At the time of hearing before us, the learned Counsel for the assessee submitted that the impugned appellate orders as well as the assessment orders have been passed ex-parte qua the assessee and the issues in dispute in the quantum additions have been made by the Assessing Officer and also confirmed by the learned CIT(A) without examining the issues on merits and also without participation of the assessee during the assessment proceedings as well as during the appellate proceedings in NFAC. He made a prayer to set aside the impugned appellate orders of learned CIT(A) and to restore the issues in dispute regarding the quantum additions to the file of the Assessing Officer with a direction to pass assessment orders in accordance with law after providing reasonable opportunity to the assessee. (B.1) Per contra, the learned Departmental Representatives, learned CIT (D.R.) and learned Addl. CIT (D.R.), strongly opposed the prayer made by learned Counsel for the assessee stating that the assessee was given adequate opportunity by NFAC. They further contended that the assessee did not make prompt compliances during the assessment proceedings; and as the limitation date for passing the assessment order was near, the Assessing Officer had no alternative but to pass the assessment orders. (C) We have heard both the sides. On perusal of records, we find that during assessment proceedings the Assessing Officer issued final show cause notice/ hearing notices in the month of March 2022. However, the compliance dates specified in the notices were after a very short duration from the date of issue of notices. Shortly after the specified compliance 11 dates, the Assessing Officer passed assessment orders for the respective assessment years. The facts are summarized in the following table: Assessment year Show cause notice Date of assessment order DIN No. of the Assessing Officer Issue date Compliance date 2014-15 09/03/2022 15/03/2022 19/03/2022 ITBA/AST/8/147/2021-22/ 1041777160(1) 2015-16 14/03/2022 17/03/2022 19/03/2022 ITBA/AST/8/147/2021-22/ 1041041678(1) 2016-17 10/03/2022 14/03/2022 15/03/2022 ITBA/AST/8/147/2021-22/ 1040812055(1) 2017-18 10/03/2022 14/03/2022 15/03/2022 ITBA/AST/8/147/2021-22/ 1040807409(1) 2018-19* 14/03/2023 20/03/2022 24/03/2022 ITBA/AST/8/147/2021-22/ 1051295090(1) *ASSESSEE FILED LETTER DATED 21/03/2022 STATING THAT DUE TO DEATH OF HIS MOTHER, HE WAS UNABLE TO SUBMIT DOCUMENTS/DETAILS ASKED. (C.1) On perusal of the above in the specific facts and circumstances of the present appeals before us, , we find that between issue dates of the aforesaid notices and specified compliance dates, the time available to the assessee for making compliance was too short; especially as the assessee was mourning due to death of his mother. Therefore, in the facts and circumstances of the cases before us, we are of the view that the assessee did not get reasonable opportunity to explain his case before the Assessing Officer after the issue of the aforesaid notices. We are further of the view that the assessee deserves another opportunity to explain his case to the Assessing Officer. (C.1.2) In this regard we take note of decision of Delhi Bench of Income Tax Appellate Tribunal in the case of [2021] 131 taxmann.com 124 (Delhi-Trib.)/ [2021] 199 DTR (Trib) 0145 (Del) / [2021] 210 TTJ 0309 (Del) / [2021] 61 12 CCH 0337 (Del. Trib.) Energy Infratech (P.) Ltd. vs. DCIT; in which it was held as under: “We are of the view that the assessee has the right to explain his case first to the Assessing Officer; before he is forced to explain his case to appellate authorities. If an assessee explains his case at the first stage, i.e. at the stage of the Assessing Officer to the satisfaction of the Assessing Officer; the matter, in a way, attains 'Limited Finality' because Revenue has no right of appeal against the order of the Assessing Officer. Though the matter can be revisited by Revenue under exceptional circumstances, such as, for example, in the circumstances prescribed under sections 147, 263, 264, 154, 153A 153C, etc. of I.T. Act; the fact that Revenue has no right of appeal against the order of Assessing Officer implies that the matter attains 'Limited Finality', barring the exceptional circumstances as aforementioned, if the assessee is able to satisfactorily explain the matter to the Assessing Officer. That is why it is of utmost importance that the assessee gets proper and reasonable opportunity at the first stage (i.e. at the stage of Assessing Officer), so that the assessee has a chance to avail of 'Limited Finality' which is an assessee's statutory right.” (C.2) In the present cases also, we are of the view that the assessee deserves to get proper and reasonable opportunity at the first stage, i.e. during the assessment proceedings before the Assessing Officer, so that the assessee has a chance to avail of ‘limited finality’ which is the assessee’s statutory right. (C.2.1) In view of the foregoing, we set aside the aforesaid impugned appellate orders of the learned CIT(A) each dated 10/08/2023, passed in respect of assessment years 2014-15 to 2018-19 (as referred to in foregoing paragraph (A) of this order) and we restore the issues in dispute regarding the quantum additions to the file of the Assessing Officer with the direction to pass separate de novo assessment order for the assessment years 2014- 15 to 2018-19 after providing reasonable opportunity to the assessee; and in accordance with law. 13 (D) Appeals vide I.T.A. No. 273 to 276/Lkw/2023 are in respect of penalty imposed by the Assessing Officer u/s 271B of the IT Act in respect of the quantum additions made in the aforesaid assessment order for assessment years 2014-15 to 1017-18. Separate orders levying penalty were passed by the Assessing Officer, dated 14/09/2022, 13/09/2022, 13/09/2022 and 13/09/2022 for assessment years 2014-15 to 2017-18 respectively vide DIN ITBA/PNL/F/271B/2022-23/1045495320(1), ITBA/ PNL /F/ 271B/ 2022- 23/1045594264(1), ITBA/PNL/F/271B/2022-23/1045458821(1) and ITBA/PNL/F/271B/2022-23/1045448503(1) respectively. The assessee filed appeals against the aforesaid orders levying penalty u/s 271B in NFAC. Vide separate appellate orders each dated 10/08/2023 (vide DIN ITBA/NFAC/S/250/2023-24/1055026597(1) for assessment year 2014-15, DIN ITBA/NFAC/S/250/2023-24/1055026769(1) for assessment year 2015- 16, DIN ITBA/NFAC/S/250/2023-24/1055026932(1) for assessment year 2016-17, DIN ITBA/NFAC/S/250/2023-24/1055027040(1) for assessment year 2017-18 and DIN ITBA/NFAC/S/250/2023-24/1055027131(1) for assessment year 2018-19), the learned CIT(A) dismissed the assessee’s appeals. The present appeals before us vide I.T.A. Nos. 273 to 276/Lkw/2023 have been filed by the assessee against the aforesaid impugned appellate orders of the learned CIT(A) each dated 10/08/2023. The grounds of appeal are as under: I.T.A. No.273/Lkw/2023 “1. The Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld. CIT-A] erred on facts and in law in dismissing the appeal of the appellant by passing an ex-parte order without providing opportunity to the appellant to have his say on the merit of the penalty levied on him. 14 2. 2. The Ld. CIT-A was not at all justified in dismissing the appeal of the appellant because of the fact that the appellant's submissions on the merit of the issue involved in the appeal has not been taken into consideration and hence the matter deserves to be remanded back to the file of the Ld. CIT-A for adjudicating the issue on merit after considering the submission of the appellant. WITHOUT PREJUDICE TO GROUND NO 1 & 2 ABOVE: 3. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs.63,846/- levied under section 271B of the I.T. Act, 1961 without appreciating the law that the impugned penalty order was passed without assuming any proper jurisdiction to levy any penalty u/s 271B of the Act on ground that: the initiation of penalty proceeding u/s 271B of the Act was made through the reassessment order passed u/s 147 of the Act vide order dated 19.03.2022 by office of the National Faceless Assessment Centre, Delhi and the levy of penalty u/s 271B could be made by the office of the Assessing Authority initiating the penalty proceeding, which in the present case is National Faceless Assessment Centre, Delhi. 4. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs.63,846/- u/s 271B of the Act by wrongly treating the assessed income of Rs.1,27,69,388/- assessed by the Assessing Authority of the National Faceless Assessment Centre, Delhi as business turnover for the purposes of the provisions of section 44AB of the I.T. Act, 1961. 5. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs.63,846/- u/s 271B of the Act without appreciating the fact that neither any show cause notice nor any query was confronted to the appellant nor was provided any opportunity to the appellant to have his say on the merit of the penalty levied on him.” I.T.A. No.274/Lkw/2023 15 “1. The Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld. CIT-A] erred on facts and in law in dismissing the appeal of the appellant by passing an ex-parte order without providing opportunity to the appellant to have his say on the merit of the penalty levied on him. 2. The Ld. CIT-A was not at all justified in dismissing the appeal of the appellant because of the fact that the appellant's submissions on the merit of the issue involved in the appeal has not been taken into consideration and hence the matter deserves to be remanded back to the file of the Ld. CIT-A for adjudicating the issue on merit after considering the submission of the appellant. 3. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs. 1,50,000/- levied under section 271B of the I.T. Act, 1961 without appreciating the law that the impugned penalty order was passed without assuming any proper jurisdiction to levy any penalty u/s 271B of the Act on ground that the initiation of penalty proceeding u/s 271B of the Act was made through the reassessment order passed u/s 147 of the Act vide order dated 19.03.2022 by office of the National Faceless Assessment Centre, Delhi and the levy of penalty u/s 271B could be made by the office of the Assessing Authority initiating the penalty proceeding, which in the present case is National Faceless Assessment Centre, Delhi. 4. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs. 1,50,000/- u/s 271B of the Act by wrongly treating the assessed income of Rs.3,29,58,528/- assessed by the Assessing Authority of the National Faceless Assessment Centre, Delhi as business turnover for the purpose of the provisions of section 44AB of the IT Act. 16 5. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs. 1,50,000/-u/s 271B of the Act without appreciating the fact that neither any show cause notice nor any query was confronted to the appellant nor was provided any opportunity to the appellant to have his say on the merit of the penalty levied on him.” I.T.A. No.275/Lkw/2023 “1. The Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter referred to as the Ld. CIT-A] erred on facts and in law in dismissing the appeal of the appellant by passing an ex-parte order without providing opportunity to the appellant to have his say on the merit of the penalty levied on him. 2. The Ld. CIT-A was not at all justified in dismissing the appeal of the appellant because of the fact that the appellant's submissions on the merit of the issue involved in the appeal has not been taken into consideration and hence the matter deserves to be remanded back to the file of the Ld. CIT-A for adjudicating the issue on merit after considering the submission of the appellant. 3. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs. 1,50,000/-levied under section 271B of the I.T.Act, 1961 without appreciating the law that the impugned penalty order was passed without assuming any proper jurisdiction to levy any penalty u/s 271B of the Act on ground that: the initiation of penalty proceeding u/s 271B of the Act was made through the reassessment order passed u/s 147 of the Act vide order dated 15.03.2022 by office of the National Faceless Assessment Centre, Delhi and the levy of penalty u/s 271B could be made by the office of the Assessing Authority initiating the penalty proceeding, which in the present case is National Faceless Assessment Centre, Delhi. 17 4. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty Rs. 1,50,000/- u/s 271B of the Act without appreciating the fact that neither any show cause notice nor any query was confronted to the appellant nor was provided any opportunity to the appellant to have his say on the merit of the penalty levied on him. 5. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs. 1,50,000/-u/s 271B of the Act without appreciating the fact that neither any show cause notice nor any query was confronted to the appellant nor was provided any opportunity to the appellant to have his say on the merit of the penalty levied on him.” I.T.A. No.276/Lkw/2023 “1. The Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter referred to as the Ld. CIT-A] erred on facts and in law in dismissing the appeal of the appellant by passing an ex-parte order without providing opportunity to the appellant to have his say on the merit of the penalty levied on him. 2. The Ld. CIT-A was not at all justified in dismissing the appeal of the appellant because of the fact that the appellant's submissions on the merit of the issue involved in the appeal has not been taken into consideration and hence the matter deserves to be remanded back to the file of the Ld. CIT-A for adjudicating the issue on merit after considering the submission of the appellant. 3. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs.1,33,615/-levied under section 271B of the I.T. Act, 1961 without appreciating the law that the impugned penalty order was passed without assuming any proper jurisdiction to levy any penalty u/s 271B of the Act on ground that: the initiation of penalty proceeding u/s 271B of the Act was made through the reassessment order passed u/s 147 18 of the Act vide order dated 15.03.2022 by office of the National Faceless Assessment Centre, Delhi and the levy of penalty u/s 271B could be made by the office of the Assessing Authority initiating the penalty proceeding, which in the present case is National Faceless Assessment Centre, Delhi. 4. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs.1,33,615/- u/s 271B of the Act by wrongly treating the assessed income of Rs.2,67,23,089/- assessed by the Assessing Authority of the National Faceless Assessment Centre, Delhi as business turnover for the purposes of the provisions of section 44AB of the I.T. Act, 1961. 5. The Ld. CIT-A erred on facts and in law in confirming the levy of penalty of Rs. 1,33,615/-u/s 271B of the Act without appreciating the fact that neither any show cause notice nor any query was confronted to the appellant nor was provided any opportunity to the appellant to have his say on the merit of the penalty levied on him.” (D.1) In the foregoing part of this order in paragraph (C.2.1), we have already set aside the impugned appellate orders of the learned CIT(A) in respect of quantum additions and have restored the issues in dispute to the file of the Assessing Officer for fresh orders. As a result quantum of additions in the fresh assessment order may vary from quantum of additions made in the assessment orders mentioned in foregoing paragraph (C) of this order; and accordingly, penalty u/s 271B may vary, if it is deemed fit to levy penalty. In the fitness of things, therefore, fresh orders levying penalty u/s 271B of the IT Act should be passed, if deemed fit, after the Assessing Officer passes fresh assessment orders in compliance of our aforesaid directions contained in foregoing paragraph (C.2.1). Therefore, the impugned appellate orders of the learned CIT(A) as referred to in foregoing paragraph (D) of this order, in the present appeals before us (vide ITA 19 Numbers 273 – 276/Lkw/2023) are also set aside. The issue regarding penalty u/s 271B is restored to the file of the Assessing Officer for assessment year 2014-15 to 2017-18, and the Assessing Officer is directed to pass de novo orders u/s 271B of IT Act, if deemed fit in accordance with law, after providing reasonable opportunity to the assessee; and after passing de novo assessment orders for assessment years 2014-15 to 2017-18 as per foregoing directions. (F) All the grounds of appeal in the aforesaid nine appeals are treated as disposed of in accordance with aforesaid directions contained in foregoing paragraphs (C.2.1) and (D.1) of this order. In the result, all the nine appeals are partly allowed for statistical purposes. (Order pronounced in the open court on 28/12/2023) Sd/. Sd/. (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) Judicial Member Accountant Member Dated:28/12/2023 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. D.R., I.T.A.T., 5. CIT(A) Assistant Registrar