Harish Chanana, New Delhi V. ITO WARD - 63(1), New Delhi

ITA 7578/DEL/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9635 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 15-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANGEETA YADAV
• Assessee Lawyers: NIPPUN MITTAL
• Keywords: Unexplained investment; Opportunity of being heard; Principle of natural justice
• Section: 271(1)(c); 144; 271D; 274; 251

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘B’ : NEW DELHI) SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER and SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER ITA No.7578/Del./2019 (ASSESSMENT YEAR : 2007-08) Shri Harish Chanana, vs. ITO, Ward 63 (1), SD – 185, Pitampura, New Delhi. Delhi – 110 035. (PAN : AAFPC2783D) (APPELLANT) (RESPONDENT) ASSESSEE BY : Shri Nippun Mittal, CA REVENUE BY : Ms. Sangeeta Yadav, Sr. DR Date of Hearing : 07.07.2022 Date of Order : 07.07.2022 ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : This appeal by the assessee is directed against the order of the ld. CIT (Appeals)-36, New Delhi dated 13.08.2019 for the assessment year 2007-08. 2. The grounds of appeal taken by the assessee read as under :- “1. On the facts and circumstances of the case and in law, the CIT (A) erred in passing ex-parte order. 2. On the facts and circumstances of the case and in law, the CIT (A) erred in passing order without providing opportunity of being heard. 3. On the facts and circumstances of the case and in law, the order passed by CIT (A) is against the principles of natural justice. ITA No.7578/Del./2019 2 4. On the facts and circumstances of the case and in law, the CIT (A) erred in not adjudicating the grounds of appeal on merit. 5. On the facts and circumstances of the case and in law, the order passed by the assessing officer u/s 271(1)(c) of the Act is bad- in-law and without jurisdiction and CIT (A) erred in not holding so. 6. On the facts and circumstances of the case and in law, the CIT (A) erred in confirming the addition of the AO in imposing penalty of Rs.33,93,422/- on account of u/s 271(1)(c). 7. On the facts and circumstances of the case and in law, the notice issued u/s 274 r.w.s. 271D of the Act was defective notice and therefore, penalty levied is liable to be cancelled.” 3. In this case, upon levy of penalty under section 271(1)(c) of the Income- tax Act, 1961 (for short ‘the Act’) for an amount of Rs.33,93,422/-, assessee appealed before the ld. CIT (A). Ld. CIT (A) noted the facts leading to the levy of penalty as under :- “In this case assessment was completed under section 144 of the Income Tax Act, on 21.12.2009 at a total income of Rs.1,02,53,410/- as against returned income of Rs.92,410/- after making total additions of Rs.1,01,61,000/-. During the course of assessment proceedings the assessee was asked to produce books of account, vouchers and bills. Despite allowing various opportunities of being heard, the assessee did not produce the books of accounts, vouchers and bills etc. Therefore an addition of Rs.25,000/ - was made under the head unverifiable nature of trading account and expense. The same has been deleted by the CIT(A) XXVII, New Delhi vide 166/2009-10 dated 15.09.2010. Additions were made as below:- 1. Unexplained unsecured loan 80,000/- 2. Unexplained sundry creditors 55,000/- 3. Unexplained Investment/ advance 44,00,000/- 4. Unexplained cash deposits 56,01,000/- ITA No.7578/Del./2019 3 In order to finalize the proceeding u/s 271(1)(c) of the Act, opportunity of being heard was provided to the assessee dated 23.02.2011 and 12.03.2012. The assessee filed a reply on 19.03.2012 stating that he had no plot such as mentioned in his ITR for value of Rs.44,00,000/- and regarding Rs.56,00,000/ - cash deposits was out of sale of stock which was not accounted by his Chartered Accountant in the ITR. He also stated that his wife was a cancer patient and due to her treatment he had no money to deposit the tax liability. The explanation offered by the assessee was not acceptable as the Ld. CIT(A) had also confirmed the additions and the assessee had concealed the particular of income I furnished wrong particulars of his income as per Income Tax Act., the excuse of the assessee that the CA has furnished wrong particulars while preparing the return for the year under consideration. In the light of the above case facts, it was clearly established that the assessee had filed inaccurate particular of his income and concealed his true income. As such it was a fit case for imposition of penalty u/s 271(1)(c) of the Income Tax Act. Accordingly a minimum penalty of Rs.33,93,422/- was imposed upon the assessee u/s 271(l)(c) of the Income Tax Act.” 4. Thereafter, he noted that assessee has not attended to notices of hearing. Hence, he held that assessee is not interested in prosecuting the appeal. He has concluded as under :- “3.5 Since, the Appellant has not presented any argument and submission or any paper filed in support of its claim, the appeal is decided judiciously based on materials available on record. 3.6 I have gone through the impugned order and facts of the case. The appellant has chosen not to appear during the appellate proceedings. ITA No.7578/Del./2019 4 3.7 Therefore, the penalty imposed by the Assessing officer U/s 271(1)(c) is sustained, on the reasons given in the Assessment order. In the result, this appeal is DISMISSED.” 5. Against the above order, the assessee is in appeal before us. We have heard ld. DR for the Revenue and perused the record. None appeared on behalf of the assessee despite issuance of notice of hearing. 6. We find that as per section 251 of the Act, ld CIT (A) has no power to dismiss the appeal for non-prosecution. His one liner order on merits is a non- speaking, laconic and absolutely cryptic order not sustainable in law. Hence, in the interest of justice, we remit the issue raised in the appeal to the file of ld. CIT (A). Ld. CIT (A) shall decide the issue by passing a speaking order by giving the assessee an opportunity of being heard. 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on this 7 th day of July, 2022 after the conclusion of the hearing. Sd/- sd/- (NARENDER KUMAR CHOUDHRY) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 7 th day of July, 2022 TS ITA No.7578/Del./2019 5 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT (A)-36, New Delhi. 5.CIT(ITAT), New Delhi. AR, ITAT NEW DELHI.