Vijay Kumar Pandav, KHAGARIA V. I.T.O., Ward -6(4), Patna

ITA 57/PAT/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 9614 (ITAT-PATNA)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 24-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH KUMAR PANDEY
• Keywords: Opportunity of being heard
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA BEFORE SH. N. K. SAINI, AM AND SH. SUDHANSHU SRIVASTAVA , JM ITA NO. 57 /PAT. /2017 : ASSTT. YEAR : 2011 - 12 VIJAY KUMAR PANDAV, CHUKTI MANSI, DISTT. KHAG ARIA - 851214 VS INCOME TAX OFFICER, WARD - 6(4), PATNA (APPELLANT) (RESPONDENT) PAN NO. A GAPP0171D ASSESSEE BY : SH. MANISH KUMAR PANDEY , ADV. REVENUE BY : SH. KAUS IK KUMAR DAS, SR. DR DATE OF HEARING : 13 .03 .201 8 DATE OF PRONOUNCE MENT : 14 .0 3 .201 8 ORDER PER N. K. SAINI, AM : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 25 .01.2017 OF LD. CIT( A ) - 2 , PATNA . 2 . THE ONLY GRIEVANCE OF THE ASSESSE E IN THIS APPEAL RELATES TO THE SUSTENANCE OF PENALTY OF RS.37,35,760/ - LEVIED BY THE AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BY PASSING THE EX - PARTE ORDER. 3 . FACTS OF THE CASE IN BRIEF ARE THAT THE AO FRAMED T HE ASSESSMENT AT AN INCOME OF RS.1,28,95,143/ - BY ADDING RS.1,20,99,812/ - AS AN UNEXPLAINED CASH DEPOSIT U/S 40A(3) OF THE ACT VIDE ASSESSMENT ORDER DATED 29.03.2014. THE AO ALSO INITIATED THE PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT . S INCE THE ASSESSE E HAD NOT COMPLIED TO THE NOTICES ISSUED, T HE AO LEVIED THE PENALTY ITA NO . 57 /PAT. /2017 VIJAY KUMAR PANDA V 2 OF RS.37,35,760/ - U/S 271(1)(C) OF THE ACT VIDE ORDER DATED 26.09.2014. 4 . BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL IN LIMINE BY OBSERVIN G THAT SUFFICIENT OPPORTUNITY OF BEING HEARD HAD BEEN ALLOWED TO THE ASSESSEE BUT THERE WAS NO COMPLIANCE. 5 . NOW THE ASSESSEE IS IN APPEAL. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO NOTICE OF HEARING WAS RECEIVED BY THE ASSESSEE. THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL. IT WAS ALSO STATED THAT THE LD. CIT(A) HAD NOT DECIDED THE ISSUE ON MERIT. 6. IN HIS RIVAL SUBMISSIONS, THE LD. SR. DR SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A). 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS NOTICED FROM THE FACE OF THE IMPUGNED ORDER THAT THE LD. CIT(A) MENTIONED AS UNDER: DATE OF HEARING: NONE PRESENT FOR THE APPELLAN T: NONE PRESENT FOR THE D EPARTMENT: NONE 8. FROM THE ABOVE NOTING, IT IS CLEAR THAT NO OPPORTUNITY OF BEING HEARD WAS GIVEN. THE LD. CIT(A) SIMPLY STATED THAT THE NOTICES WERE ISSUED FOR HEARING BUT THERE WAS NO COMPLIANCE. HOWEVER, HE HAS NOT MENTIONE D AS TO WHETHER ANY OF THE NOTICE ISSUED WAS SERVED UPON THE ASSESSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM PARTEM. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS OF THE PRESENT CASE, DEEM IT ITA NO . 57 /PAT. /2017 VIJAY KUMAR PANDA V 3 APP ROPRIATE TO SET ASIDE THIS ISSUE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PR ONO UNCED IN THE COURT ON 14 /03/2018) SD/ - SD/ - (SUDHANSHU SRIVASTAVA ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 14 /0 3 /2018 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO . 57 /PAT. /2017 VIJAY KUMAR PANDA V 4 DATE INITIAL 1. DRAFT DICTATED ON 13 .03 .201 8 PS 2. DRAFT PLACED BEFORE AUTHOR 14 .03 .201 8 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.