Avinash Pathak, Katni V. Assistant Commissioner of Income Tax,Circle Katni, Katni

ITA 49/JAB/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6256 (ITAT-JABALPUR)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 24-10-2021
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Section: 139(1); 271B; 44AB

Judgement Text

ITA No. 49/Jab/2021(AY 2014-15) Avinash Pathak v. Asst. CIT 1 IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH, JABALPUR (SMC) (through Virtual Hearing) BEFORE SH. SANJAY ARORA, HON'BLE ACCOUNTANT MEMBER ITA No.49/JAB/2021 Assessment Year: 2014-15 Avinash Pathak Katni (M.P.) [PAN: AEPPP 8236C] vs. Assistant Commissioner of Income Tax, Circle Katni, (M.P.) (Appellant) (Respondent) Appellant by Sh. Dhiraj Ghai, FCA Respondent by Sh. S.K. Halder, Sr. DR Date of hearing 15/12/2021 Date of pronouncement 16/12/2021 ORDER Per Sanjay Arora, AM This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre Delhi (‘CIT(A)’ for short) dated 14/08/2021, dismissing the assessee’s appeal contesting the levy of penalty under section 271B of the Income Tax Act, 1961 (‘the Act’ hereinafter) for the Assessment Year (AY) 2014-15 vide order dated 05/5/2017. 2. At the outset, it was submitted by the ld. counsel for the assessee, Sh. Ghai, that the assessee’s appeal has been dismissed by the ld. CIT(A) in the absence of any explanation by him for the admitted default in not obtaining the audit report u/s. 44AB of the Act – which was only on 5/5/2015, by the due date of filing the return of income u/s. 139(1) for the relevant year, being 30/9/2014, ITA No. 49/Jab/2021(AY 2014-15) Avinash Pathak v. Asst. CIT 2 i.e., as mandated by sec. 44AB . The impugned order, drawing attention thereto, he continued, mentions four dates on which opportunity of hearing was granted by the first appellate authority. However, of the same, two, i.e., on 20/4/2021 and 10/6/2021, were during the period of the pandemic, when the country was facing severe crises, witnessing lockdowns. The next and the last opportunity, i.e., vide notice of hearing dated 04/08/2021, was for 12/8/2021 (PB pg. 86), on which date the assessee, despite attempts, was unable to upload his reply, along- with attachments (in respect of the supporting documents). A grievance was accordingly raised on 12/8/2021 itself on the e-portal, as advised (PB pg. 83), which was responded to on 17/8/2021, acknowledging the same and stating that the grievance had been duly forwarded to the concerned authority (PB pgs. 90- 91). Even the Finance Ministry was cognizant of the problem, for which the Hon’ble FM, as per media reports, summoned the CEO of the service provider (PB pgs. 84-85). It is, thus, wholly incorrect to say that the assessee has no explanation to offer, as inferred by the ld. CIT(A) in dismissing the assessee's appeal. The assessee, he explained, has neither at any time in the past nor in the subsequent years, defaulted in filing his return of income in time or getting his accounts audited as per s. 44AB. For the relevant year, his mother was seriously ill, undergoing treatment for cancer of gall bladder, toward which voluminous paper-book, since uploaded on the Revenue’s e-portal, has been placed on record. It was under these circumstances that he could not furnish any reply either during the penalty proceedings or at the first appellate stage. The matter, accordingly, it was prayed, be restored to the file of the ld. CIT(A), before whom the assessee's reply stands by now submitted, for consideration afresh in terms of a reasonable cause u/s. 273B, saving penalty. The ld. Sr. DR, Sh. Halder, could not rebut any of contentions, duly evidenced, by Sh. Ghai and, rather, fairly conceded to the matter being examined by the ld. CIT(A) on merits. ITA No. 49/Jab/2021(AY 2014-15) Avinash Pathak v. Asst. CIT 3 3. I have heard the parties, and perused the material on record. The sole basis for the confirmation of the order levying penalty u/s. 271B by the first appellate authority in the instant case has been a complete non- representation by the assessee before him; he not responding to any of the notices of hearing spread over nearly eight months. However, as it transpires, there has been, on the contrary, a lapse by the assessee only on one occasion, i.e., in responding to the first such notice dated 31/12/2020. On each of the three opportunities granted subsequent thereto, the assessee was constrained by either the systemic breakdown due to the second wave of Covid-19 or by the technical snag in the E-portal of the Revenue where the reply/s, together with the supporting documents, being in relation to medical treatment of his mother, were to be uploaded, grievance in respect of which was also duly raised on the section of the E-portal dedicated therefor. There has thus been denial of a fair opportunity to state his case to the assessee for the default, which was explained by Sh. Ghai as on account of extreme medical condition of the assesseee’s – who has never defaulted at any other time, mother, necessitating her medical treatment at Katni, Jabalpur and Delhi. In view of the foregoing, setting aside the impugned order, the matter is restored for adjudication afresh to the file of the ld. CIT(A) in accordance with law per a speaking order after allowing a reasonable opportunity to the assessee to present his case before him. I decide accordingly. 4. In the result the assesse's appeal is allowed for statistical purposes. Order pronounced in the Open Court on December 16, 2021 Sd/- (Sanjay Arora) Accountant Member Dated: 16/12/2021 ITA No. 49/Jab/2021(AY 2014-15) Avinash Pathak v. Asst. CIT 4 Copy of the Order forwarded to: 1. The Appellant: Sh. Avinash Pathak, Arvind Pathak House, Pathak Ward, Katni - 483501 2. The Respondent: Assistant Commissioner of Income Tax, Circle Katni - 483501 3. The Pr. CIT-1, Jabalpur 4. The CIT(A), National Faceless Appeal Centre, Delhi 5. The Sr. DR, ITAT, Jabalpur 6. Guard File // True Copy //