Fateh Singh, Meerut V. ITO, Ward-1(2), Meerut

ITA 5136/DEL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6561 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 27-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Opportunity of being heard
• Section: 271(1)(c); 142(1); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC : NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NOS.5136 & 5137/DEL/2018 ASSESSMENT YEAR: 2009-10 FATEH SINGH, C/O C.S. ANAND, ADVOCATE, 104, PANKAJ TOWER, 10-LSC, SAVITA VIHAR, DELHI. PAN: EXTPS2050E VS. ITO, WARD 1(2), MEERUT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI C.S. ANAND, ADVOCATE REVENUE BY : SHRI S.L. ANURAGI, SR.DR DATE OF HEARING : 30.07.2019 DATE OF PRONOUNCEMENT : 01.08.2019 ORDER ITA NO.5136/DEL/2018 FILED BY THE ASSESSEE IS DIREC TED AGAINST THE ORDER DATED 23 RD MAY, 2018 OF THE CIT(A), MEERUT RELATING TO ASSESS MENT YEAR 2009-10. ITA NO.5137/DEL/2018 FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 30 TH MAY, 2018 OF THE CIT(A), MEERUT RELATING TO ASSESSMENT Y EAR 2009-10 CONFIRMING THE PENALTY OF RS.18,200/- LEVIED U/S 271(1)(C) OF THE IT ACT. 2. FOR THE SAKE OF CONVENIENCE BOTH THESE APPEALS W ERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. ITA NOS.5136 & 5137/DEL/2018 2 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS EE IS AN INDIVIDUAL AND WAS A NON- FILER OF RETURN. ON THE BASIS OF THE AIR INFORMATI ON REGARDING SALE OF IMMOVABLE PROPERTY BY THE ASSESSEE DURING THE F.Y. 2008-09, W ITHOUT QUOTING OF HIS PAN, THE ASSESSING OFFICER ISSUED NOTICE U/S 148 ON 29 TH MARCH, 2016 AFTER RECORDING REASONS AND OBTAINING SANCTION OF THE PCIT, MEERUT. SUBSEQ UENTLY, NOTICES U/S 142(1) WERE ALSO ISSUED AND SERVED ON THE ASSESSEE. HOWEVER, T HERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE FOR WHICH THE ASSESSING OFFICE R COMPLETED THE ASSESSMENT U/S 144 OF THE IT ACT AND DETERMINED THE TOTAL INCOME OF TH E ASSESSEE AT RS.18,27,890/- ON ACCOUNT OF LONG-TERM CAPITAL GAIN. THE ASSESSING O FFICER, THEREAFTER, INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND LEVIED PEN ALTY OF RS.18,200/- U/S 271(1)(C) OF THE IT ACT. SINCE THERE WAS NON-COMPLIANCE BEFORE THE CIT(A) DESPITE NUMBER OF OPPORTUNITIES GRANTED, THE LD.CIT(A), IN THE EX PARTE ORDER PASSED BY HIM, SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRME D THE PENALTY LEVIED U/S 271(1)(C) OF THE IT ACT, 1961. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE LIVES IN A VILLAGE AND THE NOTICES WERE NEVER RECEIVED BY HIM IN TIME FOR WHICH THERE WAS SUCH NON- COMPLIANCE. HE SUBMITTED THAT IN THE INTEREST OF J USTICE THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY OF BEING HEARD AND THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER. ITA NOS.5136 & 5137/DEL/2018 3 6. THE LD. DR, ON THE OTHER HAND, STRONGLY OPPOSED THE ARGUMENTS ADVANCED BY THE LD. COUNSEL AND SUBMITTED THAT DESPITE NUMBER OF OP PORTUNITIES GRANTED, THE ASSESSEE NEITHER APPEARED BEFORE THE ASSESSING OFFICER NOR B EFORE THE CIT(A). THEREFORE, THE ORDER OF THE CIT(A) SHOULD BE CONFIRMED. 7. I HAVE CONSIDERED THE RIVAL CONTENTIONS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE ASSESSING OFFICER AND CIT(A). IT IS AN ADMITTED FACT THAT DUE TO NON- APPEARANCE BEFORE THE ASSESSING OFFICER AS WELL AS THE CIT(A), BOTH THE AUTHORITIES HAVE PASSED EX PARTE ORDERS. CONSIDERING THE TOTALI TY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE, I DEEM IT APPROPRIATE TO RESTO RE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO GRANT ONE FINAL OPPORTU NITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE AND DECIDE THE ISSUE AS PER FACT AND LAW. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER AND COOPERAT E IN COMPLETION OF THE ASSESSMENT PROCEEDINGS, FAILING WHICH, THE ASSESSING OFFICER I S AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. I HOLD AND DIRECT ACCORDINGLY. 8. SINCE THE QUANTUM ADDITION IS RESTORED TO THE FI LE OF THE ASSESSING OFFICER, THEREFORE, THE PENALTY IS HEREBY CANCELLED AND THE ASSESSING OFFICER IS AT LIBERTY TO INITIATE FRESH PENALTY PROCEEDINGS AFTER COMPLETION OF THE ASSESSMENT IF SO REQUIRED. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NOS.5136 & 5137/DEL/2018 4 9. IN THE RESULT, BOTH THE APPEALS FILED BY T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON 0 1.08.2019. SD/- ( R.K. PANDA) ACCOUNTANT MEMFBE R DATED: 01 ST AUGUST, 2019 DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI