Bharat Babulal Jain, Pune V. Income Tax Officer, Ward5(1), Pune

ITA 808/PUN/2022

AI Insights

The case involves Bharat Babulal Jain, the appellant, who faced penalties under section 271(1)(c) of the Income-tax Act, 1961, for the assessment years 2003-04 to 2007-08. These penalties were imposed following a search and seizure operation under section 132 of the Act, which led to reassessments for the mentioned years. The CIT(A) had dismissed the appellant's appeals against these penalties due to non-appearance and lack of substantive rebuttal against the findings of the Assessing Officer (A.O). The Tribunal noted the appellant's non-appearance was due to circumstances beyond his control and not deliberate, and thus decided to remand the case back to the CIT(A) for a fresh examination on merits.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124451 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-03-2023
• Assessment Year: 2003-2004
• Appeal Filed On: 09-11-2022
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Opportunity of being heard
• Section: 132; 271(1)(c); 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH, PUNE SHRI INTURI RAMA RAO, A.M. AND SHRI PARTHA SARATHI CHAUDHURY, JM ITA No. 808/PUN/2022 to 812/PUN/2022 A.Y. 2003-04 to 2007-08 Bharat Babulal Jain 82A East Street, Galeria 2413 East Street PUNE – 411 001 PAN: AASPJ 7315D Appellant Vs. The I.T.O. Ward 5(1) Pune Respondent Appellant by : Shri Vilesh Dalya Respondent by : Shri M.G. Jasnani Date of Hearing : 28-03-2023 Date of Pronouncement : 28-03-2023 ORDER PER SHRI PARTHA SARATHI CHAUDHURY, JM : These appeals preferred by the assessee emanates from common order of the ld. CIT(A), Pune-11, dated 21-09-2022 for A.Y. 2003-04, 2004-05, 2005- 06, 2006-07 and 2007-08 as per the grounds of appeal on record. 2. The solitary grievance of the assessee in all these appeals is the imposition of penalty u/s 271(1)(c) of the Income-tax Act, 1961 (hereinafter referred to as the “Act’) by the A.O and as confirmed by the ld. CIT(A). 3. Taking the lead case in ITA No. 808/PUN/2022 for A.Y. 2003-04, the facts are the assessee is an individual. A search and seizure action u/s 132 of the Act was conducted on the assessee. Accordingly, notices u/s 153A were issued to the assessee for .Y. 2003-04 to 2007-08 to the assessee. During the search assessment proceedings, special audit u/s142(2A) of the Act was also conducted in the case of the assessee. The assessments for all these five years were completed u/s 143(3) r.w.s. 153A of the Act on 20-7-2009 by 2 ITA No. 808 to 812/PUN/2022 Bharat Jain A.Y. 2003-04 to 2007-08 making various additions. Penalty proceedings u/s 271(1)(c) of the Act were also initiated for all the five assessment yeas. Being aggrieved by the assessment orders, the assessee filed appeals before the ld. CIT(A) and the appeals of the assessee were disposed by the ld. CIT(A), Pune vide appellate order No. Pn/CIT(A)-11/DCIT Cntrl.cir.1(1)/376/09-10 dated 28-02-2014 by partly allowing the appeals of the assessee. On receipt of said appellate order, the A.O issued fresh notice to the assessee asking him to explain as to why penalty u/s 271(1)(c) should not be levied and after considering the reply of the assessee, penalty u/s 271(1)(c) of the Act was levied by the A.O for all five years. 4. Aggrieved by the said penalty order, the assessee filed separate appeals for A.Y. 2003-04 to 2007-08 before the ld. CIT(A) and all the appeals were taken together and a common order was passed by the ld. CIT(A) taking A.Y. 2003-04 as the lead case. It is evident from the order of the ld. CIT(A) as per para 5 that the assessee was given several opportunities whereby statutory notices of hearing were issued to the assessee and on all these dates of hearing none attended. The same is evident as follows: Sr.No. Date of notice Date of hearing Remarks 1. 06-01-2020 16-01-2020 None attended 2. 20-01-2020 28-01-2020 None attended 3. 30-01-2020 05-02-2020 None attended 4. 17-02-2020 25-02-2020 None attended 5. 17-08-2021 25-08-2021 None attended 6. 08-10-2021 14-10-2021 None attended 7. 05-05-2022 18-05-2022 None attended 5. Even after this, one final opportunity was given vide notice dated 05-08- 2022 for hearing on 17-08-2022. However, again none attended the proceedings nor any submissions or adjournment was filed by the assessee. In the given circumstances, ld. CIT(A) decided the matter based on available documents on record. At para 11 of the ld. CIT(A)’s order it is evident that as 3 ITA No. 808 to 812/PUN/2022 Bharat Jain A.Y. 2003-04 to 2007-08 per the statement of facts the only contention of the assessee was that harsh penalty was levied without appreciating the facts and merits of the case. However, the assessee has not furnished any explanation as to why the penalty was not leviable in his case. Since the assessee was unable to rebut the findings of the A.O, the grounds raised against the levy of penalty before the ld. CIT(A) were dismissed. 6. We have considered the relevant documents on record. Considered the submissions of the parties. We observe that inspite of sufficient opportunities being provided to the assessee by the ld. CIT(A) the assessee failed to comply with the hearing notices and the opportunity of being heard as a part and parcel of principle of natural justice was not availed of by the assessee. Since, he was absent and neither he filed any written submissions, the ld. CIT(A) did not have any other option but to rely upon Form No. 35 and its related annexures viz. statement of facts, etc. and therein nothing has been substantiated by the assessee rebutting the findings of the A.O. In such scenario, appeal of the assessee was dismissed. 7. Before us, it was admitted by the ld. A.R that there was non-appearance from the assessee before the ld. CIT(A) due to the circumstances beyond control and it was not deliberate. The ld. D.R does not have any objection, if all the matters are remanded back to the file of the ld. CIT(A) for re-adjudication as per law on merits. We are of the considered view, therefore, in the interest of justice, all these matters should be decided by the first appellate authority on merits whereby substantially the rights and liabilities of the parties have to be ascertained. We also direct the assessee to be present before the ld. CIT(A) either in person or through his authorised representative with relevant details / documents and represent his case on merits. In view thereof, we set aside order of the ld. CIT(A) and remand the matters back to his file. We order 4 ITA No. 808 to 812/PUN/2022 Bharat Jain A.Y. 2003-04 to 2007-08 accordingly. Grounds of appeal are allowed for statistical purposes. 8. In the result, appeal in ITA No. 808/PUN/2022 for A.Y. 2003-04 is allowed for statistical purposes. 9. At the very outset, the parties herein conceded that the facts and circumstances in all these five appeals pertains levy of penalty and the issues are absolutely identical and similar. Considering their submissions, our decision already taken in ITA No. 808/PUN/2022 for A.Y. 2003-04 shall apply mutatis mutandis for appeals in ITA No. 809/PUN/2022 to 812/PUN/2022 for A.Y. 2004-05 to 2007-08 . Accordingly grounds of appeal in all these stated appeals are allowed for statistical purposes. 10. In the combined result, all the appeals in ITA No. 808/PUN/2022 to 812/PUN/2022 for A.Y. 2003-04 to 2007-08 are allowed for statistical purposes. Order pronounced in the open Court on this 28 th day of March 2023. Sd/- sd/- (INTURI RAMA RAO) (PARTHA SARATHI CHAUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER Pune; Dated, the 28 th day of March 2023. Ankam Copy of the Order forwarded to : 1. The Appellant. 2. The Respondent. 3. The NFAC Delhi 4. Pr. CIT concerned. 5. The D.R. ITAT ‘A’ Bench Pune. 5. Guard File BY ORDER, /// TRUE COPY /// Sr. Private Secretary ITAT, Pune. 5 ITA No. 808 to 812/PUN/2022 Bharat Jain A.Y. 2003-04 to 2007-08 Date 1 Draft dictated on 27-03-2023 Sr.PS/PS 2 Draft placed before author 28-03-2023 Sr.PS/PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on 28-03-2023 Sr.PS/PS 7 Date of uploading of order 28-03-2023 Sr.PS/PS 8 File sent to Bench Clerk 28-03-2023 Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order