Appeal details
Counselvise Citation
[2023] 100 COUNSELVISE.COM (IT) 0007 (ITAT-misc)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 month(s) 24 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
28-12-2023
Appeal Filed By
Assessee
Order Result
PartlyAllowed
Bench Allotted
Lucknow
Next Hearing Date
25-12-2023
Assessment Year
2016-2017
Appeal Filed On
04-09-2023
Judgement Text
1
IN THE INCOME TAX APPELLATE TRIBUNAL
LUCKNOW BENCH ‘A’, LUCKNOW
BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER
AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER
I.T.A. Nos.270 to 272/Lkw/2023
Assessment Years: 2014-15 to 16-17
I.T.A. Nos.268 & 269/Lkw/2023
Assessment Years: 2017-18 & to 18-19
I.T.A. Nos.273 to 276/Lkw/2023
Assessment Years: 2014-15 to 17-18
Shri Vinod Kumar Mishra,
81, Kanpur Road, Vishnulok,
Lucknow.
PAN:AFTPM2934F
Vs. Income Tax Officer,
Ward-1(3)(5),
Kanpur.
(Appellant) (Respondent)
O R D E R
PER BENCH:
(A) I.T.A. No.270, 271, 272, 268 and 269/Lkw/2023 are in respect of
assessment years 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19
respectively. These appeals are in respect of the quantum additions made
by the Assessing Officer in separate assessment orders for the respective
assessment years. Assessment order for the assessment year 2015-16 was
passed by the Assessing Officer u/s 147 r.w.s. 144 read with section 144B of
the Income Tax Act, 1961 (“IT Act” for short). Rest of the assessment order
Appellant by Shri B. P. Yadav, Advocate
Respondent by Shri S. H. Usmani, CIT (D.R.)
Shri Sanjeev Krishna Sharma
Addl. CIT (D.R.)
2
were passed u/s 147 r.w.s. 144B of the Act. The assessee filed appeals
against the aforesaid assessment order for assessment years 2014-15 to
2018-19 in National Faceless Appeal Centre (“NFAC” for short). By separate
impugned appellate orders each dated 10/08/2023 vide DIN
ITBA/NFAC/S/250/2023-24/1055026597(1) for assessment year 2014-15,
DIN ITBA/NFAC/S/250/2023-24/1055026769(1) for assessment year 2015-
16, DIN ITBA/NFAC/S/250/2023-24/1055026932(1) for assessment year
2016-17, DIN ITBA/NFAC/S/250/2023-24/1055027040(1) for assessment
year 2017-18 and DIN ITBA/NFAC/S/250/2023-24/1055027131(1) for
assessment year 2018-19, the learned CIT(A) dismissed the assessee’s
appeals. These appeals were dismissed ex-parte qua the assessee. The
present appeals before us vide aforesaid I.T.A. Nos. 270, 271, 272, 268 and
269/Lkw/2023 have been filed by the assessee against the aforesaid
impugned appellate orders each dated 10/08/2023.
(A.1) Grounds of appeal are as under in respect of aforesaid appeal vide
I.T.A. Nos. 270, 271, 272, 268 and 269/Lkw/2023:
I.T.A. No.270/Lkw/2023
“1. The Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld.
CIT-A) erred on facts and in law in dismissing the appeal of the
appellant by passing an ex-parte order without providing
reasonable opportunity to the appellant to have his say on the
merit of the addition made by the Assessing Authority.
2. The Ld. CIT-A was not at all justified in dismissing the appeal of
the appellant by passing an ex-parte order without adjudicating
the merit of the case and hence the matter deserves to be
remand back to the office of the Ld. CIT(A) for proper
adjudication of the issue involved in the appeal after considering
the submissions of the appellant.
3
WITHOUT PREJUDICE TO THE GROUND Nos. 1 & 2 ABOVE:
3. The Ld. CIT-A erred on facts and in law in appreciating the fact
that the assessment order was passed by relying upon the
notice u/s 148 of the Act which was issued on the basis of
borrowed satisfaction and without appreciating the fact and the
law that the concerned officer while recording the reasons for
the issuance of the notice u/s 148 of the Act did not apply his
own and independent mind to form the belief that there has
been escapement of assessment of income of Rs. 1,07,66,788/-.
4. The Ld. CIT-A erred on facts and in law in not appreciating that
the notice u/s 148 of the Act was issued on the premise that
there had been cash deposits made into the bank account of the
appellant, which is not correct and contrary to the facts of the
case of the appellant.
5. The Ld. CIT-A erred on facts and in law in not appreciating the
law that the Assessing Authority is required to provide a copy of
the reasons recorded for the issuance of notice u/s 148 of the
Act along with the notice issued u/s 148 of the Act as well as a
copy of the approval granted by the competent authority to
initiate the proceedings u/s 148 of the Act.
6. The Ld. CIT-A erred on facts and in law in confirming the
addition of Rs.1,07,66,788/- made in the hands of the appellant
by treating the amount of Rs.1,07,66,788/- as unexplained
money u/s 69A of the Act by grossly ignoring the fact that all the
deposits made into the bank accounts of the appellant were
from the disclosed sources and stood duly recorded in the books
of accounts of the appellant.
7. On the facts stated in the statement of facts, the Ld. CIT-A was
not at all justified in confirming the addition of Rs.1,07,66,788/-
made in the hands of the appellant and also on the ground that
the addition has been made purely on the basis of presumption,
conjecture and surmise and hence addition so made deserves to
be deleted.
8. The Ld. CIT-A erred on facts and in law in confirming the
charging interest u/s 234A, 234B and 234C and also erred in
4
confirming the initiation of penalty proceedings u/s 271(1)(c),
271(1)(b) and 271B of the I.T. Act, 1961.”
I.T.A. No.271/Lkw/2023
“1. The Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld.
CIT-A) erred on facts and in law in dismissing the appeal of the
appellant by passing an ex-parte order without providing
reasonable opportunity to the appellant to have his say on the
merit of the addition made by the Assessing Authority.
2. The Ld. CIT-A was not at all justified in dismissing the appeal of
the appellant by passing an ex-parte order without adjudicating
the merit of the case as the impugned assessment order has
been passed without considering the submissions of the
appellant.
3. The Ld. CIT-A erred on facts and in law in not appreciating that
no notice u/s 143(2) of the Act was issued to the appellant in
the present case, which is sin qua non for framing an
assessment order u/s 143(3)/147 of the Act.
4. The Ld. CIT-A erred on facts and in law in not appreciating that
the impugned assessment order was passed in consequence of
the notice u/s 148 of the Act, which was issued on the basis of
the borrowed satisfaction as the issuing authority while
recording the reasons for the issuance of the notice u/s 148 of
the Act did not apply his own and independent mind to form the
belief that there had been escapement of assessment of income
of Rs.3,29,58,528/-.
5. The Ld. CIT-A erred on facts and in law in not appreciating the
law that the Assessing Authority is required to provide a copy of
the reasons recorded for the issuance of notice u/s 148 of the
Act along with the notice issued u/s 148 of the Act as well as a
copy of the approval granted by the competent authority to
initiate the proceedings u/s 148 of the Act.
6. The Ld. CIT-A erred on facts and in law in confirming the
addition of Rs.3,29,58,528/- made by the Ld. Assessing
5
Authority by treating deposits made into his bank accounts as
unexplained money u/s 69A of the Act by grossly ignoring the
fact that all the deposits made into the bank accounts of the
appellant were made from the disclosed sources of income.
7. On the facts stated in the statement of facts, the Ld. CIT-A was
not at all justified in confirming the addition of Rs.3,29,58,528/-
made in the hands of the appellant and also without
appreciating that the addition made in the present case was
purely based on presumption, conjecture and surmise, which
does not have any legal footing to stand and hence deserves to
be deleted.
8. The Ld. CIT-A erred on facts and in law in confirming the
charging interest u/s 234A, 234B and 234C and also erred in
confirming the initiation of penalty proceedings u/s 271(1)(C),
271(1)(b) and 271B of the I.T. Act, 1961.”
I.T.A. No.272/Lkw/2023
“1. The Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld.
CIT-A) erred on facts and in law in dismissing the appeal of the
appellant by passing an ex-parte order without providing
reasonable opportunity to the appellant to have his say on the
merit of the addition made by the Assessing Authority.
2. The Ld. CIT-A was not at all justified in dismissing the appeal of
the appellant by passing an ex-parte order without adjudicating
the merit of the case as the impugned assessment order has
been passed without considering the submissions of the
appellant.
3. The Ld. CIT-A erred on facts and in law in not appreciating that
the impugned assessment order was passed in consequence of
the notice u/s 148 of the Act, which was issued on the basis of
the borrowed satisfaction as the issuing authority while
recording the reasons for the issuance of the notice u/s 148 of
the Act did not apply his own and independent mind to form the
belief that there had been escapement of assessment of income
of Rs.6,58,93,469/-.
6
4. The Ld. CIT-A erred on facts and in law in not appreciating the
law that the Assessing Authority is required to provide a copy of
the reasons recorded for the issuance of notice u/s 148 of the
Act along with the notice issued u/s 148 of the Act as well as a
copy of the approval granted by the competent authority to
initiate the proceedings u/s 148 of the Act.-
5. The Ld. CIT-A erred on facts and in law in confirming the
addition of Rs.6,58,93,469/-made by the Ld. Assessing Authority
by treating deposits made into his bank accounts as unexplained
money u/s 69A of the Act by grossly ignoring the fact that all the
deposits made into the bank accounts of the appellant were
made from the disclosed sources of income.
6. On the facts stated in the statement of facts, the Ld. CIT-A was
not at all justified in confirming the addition of Rs.6,58,93,469/-
made in the hands of the appellant and also without
appreciating that the addition made in the present case was
purely based on presumption, conjecture and surmise, which
does not have any legal footing to stand and hence deserves to
be deleted.
7. The Ld. CIT-A erred on facts and in law in confirming the
charging interest u/s 234A, 234B and 234C and also erred in
confirming the initiation of penalty proceedings u/s 271(1)(c),
271(1)(b) and 271B of the I.T. Act, 1961.”
I.T.A. No.268/Lkw/2023
“1. The Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld.
CIT-A) erred on facts and in law in dismissing the appeal of the
appellant by passing an ex-parte order without providing
reasonable opportunity to the appellant to have his say on the
merit of the addition made by the Assessing Authority.
2. The Ld. CIT-A was not at all justified in dismissing the appeal of
the appellant by passing an ex-parte order without adjudicating
the merit of the case as the impugned assessment order has
been passed without considering the submissions of the
appellant.
7
3. The Ld. CIT-A erred on facts and in law in not appreciating that
the impugned assessment order was passed in consequence of
the notice u/s 148 of the Act, which was issued on the basis of
the borrowed satisfaction as the issuing authority while
recording the reasons for the issuance of the notice u/s 148 of
the Act did not apply his own and independent mind to form the
belief that there had been escapement of assessment of income
of Rs.2,67,23,089/-.
4. The Ld. CIT-A erred on facts and in law in not appreciating the
law that the Assessing Authority is required to provide a copy of
the reasons recorded for the issuance of notice u/s 148 of the
Act along with the notice issued u/s 148 of the Act as well as a
copy of the approval granted by the competent authority to
initiate the proceedings u/s 148 of the Act.
5. The Ld. CIT-A erred on facts and in law in confirming the
addition of Rs.2,67,23,089/-made by the Ld. Assessing Authority
by treating deposits made into his bank accounts as unexplained
money u/s 69A of the Act by grossly ignoring the fact that all the
deposits made into the bank accounts of the appellant were
made from the disclosed sources of income.
6. On the facts stated in the statement of facts, the Ld. CIT-A was
not at all justified in confirming the addition of Rs.2,67,23,089/-
made in the hands of the appellant and also without
appreciating that the addition made in the present case was
purely based on presumption, conjecture and surmise, which
does not have any legal footing to stand and hence deserves to
be deleted.
7. The Ld. CIT-A erred on facts and in law in not appreciating that
the returned income of Rs.24,79,250/- was arrived at after duly
considering the deposits made into the bank accounts while
filing the return of income u/s 139/148 of the Act.
8. The Ld. CIT-A erred on facts and in law in not appreciating that
the Ld. A.O. had wrongly invoked the provisions of section
115BBE of the Act for computing the tax liability against the
appellant.”
8
I.T.A. No.269/Lkw/2023
“1. The Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld.
CIT-A) erred on facts and in law in dismissing the appeal of the
appellant by passing an ex-parte order without providing
reasonable opportunity to the appellant to have his say on the
merit of the addition made by the Assessing Authority.
2. The Ld. CIT-A was not at all justified in dismissing the appeal of
the appellant by passing an ex-parte order without adjudicating
the merit of the case as the impugned assessment order has
been passed without considering the submissions of the
appellant.
3. The Ld. CIT-A erred on facts and in law in not appreciating that
the impugned assessment order has been passed by the Ld.
A.O. without issuing any notice u/s 143(2) of the Act, issuing of
which is sin qua non for framing any order u/s 147/143(3) of the
Act and hence the impugned assessment order deserves to be
quashed.
4. The Ld. CIT-A erred on facts and in law in not appreciating that
the impugned assessment order was passed in consequence of
the notice u/s 148 of the Act, which was issued on the basis of
the borrowed satisfaction as the issuing authority while
recording the reasons for the issuance of the notice u/s 148 of
the Act did not apply his own and independent mind to form the
belief that there had been escapement of assessment of income
of Rs.8,00,50,399/-.
5. On the undernoted reasons, the Ld. CIT-A erred on fact and in
law in not appreciating that the notice issued u/s 148 of the Act
is bad in law and illegal-
Because the notice u/s 148 of the Act was issued on the reason
of escapement of assessment on account of cash deposits of
aggregating to Rs.3,94,71,987/-made in the Punjab National
Bank of the appellant without appreciating the fact that there
was no such cash deposits made into the Punjab National Bank
9
and hence there exists no such reason to believe for resorting to
invoking of section 148 of the Act against the appellant.
Because the Income Tax Officer Ward 1(3)(5), Kanpur did not
have jurisdiction to issue any such notice u/s 148 of the Act.
Because the notice u/s 148 of the Act was issued on the basis of
borrowed satisfaction and without appreciating the fact and the
law that the concerned officer while recording the reasons for
the issuance of the notice u/s 148 of the Act did not apply his
own and independent mind to form the belief that there has
been escapement of assessment of income of Rs.3,94,71,987/-.
6. The Ld. CIT-A erred on facts and in law in not appreciating the
law that the Assessing Authority is required to provide a copy of
the reasons recorded for the issuance of notice u/s 148 of the
Act along with the notice issued u/s 148 of the Act as well as a
copy of the approval granted by the competent authority to
initiate the proceedings u/s 148 of the Act.
7. The Ld. CIT-A erred on facts and in law in confirming the
addition of Rs.8,00,50,399/- made by the Ld. Assessing
Authority by treating deposits made into his bank accounts as
unexplained money u/s 69A of the Act by grossly ignoring the
fact that all the deposits made into the bank accounts of the
appellant were made from the disclosed sources of income.
8. On the facts stated in the statement of facts, the Ld. CIT-A was
not at all justified in confirming the addition of Rs.8,00,50,399/-
made in the hands of the appellant and also without
appreciating that the addition made in the present case was
purely based on presumption, conjecture and surmise, which
does not have any legal footing to stand and hence deserves to
be deleted.
9. The Ld. CIT-A erred on facts and in law in not appreciating that
the returned income of Rs.14,37,910/-was arrived at after duly
considering the deposits made into the bank accounts while
filing the return of income u/s 148 of the Act.
10. The Ld. CIT-A erred on facts and in law in not appreciating that
the Ld. A.O. had wrongly invoked the provisions of section
10
115BBE of the Act for computing the tax liability against the
appellant.”
(B) At the time of hearing before us, the learned Counsel for the assessee
submitted that the impugned appellate orders as well as the assessment
orders have been passed ex-parte qua the assessee and the issues in dispute
in the quantum additions have been made by the Assessing Officer and also
confirmed by the learned CIT(A) without examining the issues on merits and
also without participation of the assessee during the assessment proceedings
as well as during the appellate proceedings in NFAC. He made a prayer to
set aside the impugned appellate orders of learned CIT(A) and to restore the
issues in dispute regarding the quantum additions to the file of the Assessing
Officer with a direction to pass assessment orders in accordance with law
after providing reasonable opportunity to the assessee.
(B.1) Per contra, the learned Departmental Representatives, learned CIT
(D.R.) and learned Addl. CIT (D.R.), strongly opposed the prayer made by
learned Counsel for the assessee stating that the assessee was given
adequate opportunity by NFAC. They further contended that the assessee
did not make prompt compliances during the assessment proceedings; and
as the limitation date for passing the assessment order was near, the
Assessing Officer had no alternative but to pass the assessment orders.
(C) We have heard both the sides. On perusal of records, we find that
during assessment proceedings the Assessing Officer issued final show cause
notice/ hearing notices in the month of March 2022. However, the
compliance dates specified in the notices were after a very short duration
from the date of issue of notices. Shortly after the specified compliance
11
dates, the Assessing Officer passed assessment orders for the respective
assessment years. The facts are summarized in the following table:
Assessment
year
Show cause notice Date of
assessment
order
DIN No. of the Assessing
Officer
Issue date Compliance
date
2014-15 09/03/2022 15/03/2022 19/03/2022 ITBA/AST/8/147/2021-22/
1041777160(1)
2015-16 14/03/2022 17/03/2022 19/03/2022 ITBA/AST/8/147/2021-22/
1041041678(1)
2016-17 10/03/2022 14/03/2022 15/03/2022 ITBA/AST/8/147/2021-22/
1040812055(1)
2017-18 10/03/2022 14/03/2022 15/03/2022 ITBA/AST/8/147/2021-22/
1040807409(1)
2018-19* 14/03/2023 20/03/2022 24/03/2022 ITBA/AST/8/147/2021-22/
1051295090(1)
*ASSESSEE FILED LETTER DATED 21/03/2022 STATING THAT DUE TO
DEATH OF HIS MOTHER, HE WAS UNABLE TO SUBMIT
DOCUMENTS/DETAILS ASKED.
(C.1) On perusal of the above in the specific facts and circumstances of the
present appeals before us, , we find that between issue dates of the
aforesaid notices and specified compliance dates, the time available to the
assessee for making compliance was too short; especially as the assessee
was mourning due to death of his mother. Therefore, in the facts and
circumstances of the cases before us, we are of the view that the assessee
did not get reasonable opportunity to explain his case before the Assessing
Officer after the issue of the aforesaid notices. We are further of the view
that the assessee deserves another opportunity to explain his case to the
Assessing Officer.
(C.1.2) In this regard we take note of decision of Delhi Bench of Income Tax
Appellate Tribunal in the case of [2021] 131 taxmann.com 124 (Delhi-Trib.)/
[2021] 199 DTR (Trib) 0145 (Del) / [2021] 210 TTJ 0309 (Del) / [2021] 61
12
CCH 0337 (Del. Trib.) Energy Infratech (P.) Ltd. vs. DCIT; in which it was
held as under:
“We are of the view that the assessee has the right to explain his case first
to the Assessing Officer; before he is forced to explain his case to appellate
authorities. If an assessee explains his case at the first stage, i.e. at the
stage of the Assessing Officer to the satisfaction of the Assessing Officer; the
matter, in a way, attains 'Limited Finality' because Revenue has no right of
appeal against the order of the Assessing Officer. Though the matter can be
revisited by Revenue under exceptional circumstances, such as, for example,
in the circumstances prescribed under sections 147, 263, 264, 154, 153A
153C, etc. of I.T. Act; the fact that Revenue has no right of appeal against
the order of Assessing Officer implies that the matter attains 'Limited
Finality', barring the exceptional circumstances as aforementioned, if the
assessee is able to satisfactorily explain the matter to the Assessing Officer.
That is why it is of utmost importance that the assessee gets proper and
reasonable opportunity at the first stage (i.e. at the stage of Assessing
Officer), so that the assessee has a chance to avail of 'Limited Finality' which
is an assessee's statutory right.”
(C.2) In the present cases also, we are of the view that the assessee
deserves to get proper and reasonable opportunity at the first stage, i.e.
during the assessment proceedings before the Assessing Officer, so that the
assessee has a chance to avail of ‘limited finality’ which is the assessee’s
statutory right.
(C.2.1) In view of the foregoing, we set aside the aforesaid impugned
appellate orders of the learned CIT(A) each dated 10/08/2023, passed in
respect of assessment years 2014-15 to 2018-19 (as referred to in foregoing
paragraph (A) of this order) and we restore the issues in dispute regarding
the quantum additions to the file of the Assessing Officer with the direction
to pass separate de novo assessment order for the assessment years 2014-
15 to 2018-19 after providing reasonable opportunity to the assessee; and in
accordance with law.
13
(D) Appeals vide I.T.A. No. 273 to 276/Lkw/2023 are in respect of penalty
imposed by the Assessing Officer u/s 271B of the IT Act in respect of the
quantum additions made in the aforesaid assessment order for assessment
years 2014-15 to 1017-18. Separate orders levying penalty were passed by
the Assessing Officer, dated 14/09/2022, 13/09/2022, 13/09/2022 and
13/09/2022 for assessment years 2014-15 to 2017-18 respectively vide DIN
ITBA/PNL/F/271B/2022-23/1045495320(1), ITBA/ PNL /F/ 271B/ 2022-
23/1045594264(1), ITBA/PNL/F/271B/2022-23/1045458821(1) and
ITBA/PNL/F/271B/2022-23/1045448503(1) respectively. The assessee filed
appeals against the aforesaid orders levying penalty u/s 271B in NFAC. Vide
separate appellate orders each dated 10/08/2023 (vide DIN
ITBA/NFAC/S/250/2023-24/1055026597(1) for assessment year 2014-15,
DIN ITBA/NFAC/S/250/2023-24/1055026769(1) for assessment year 2015-
16, DIN ITBA/NFAC/S/250/2023-24/1055026932(1) for assessment year
2016-17, DIN ITBA/NFAC/S/250/2023-24/1055027040(1) for assessment
year 2017-18 and DIN ITBA/NFAC/S/250/2023-24/1055027131(1) for
assessment year 2018-19), the learned CIT(A) dismissed the assessee’s
appeals. The present appeals before us vide I.T.A. Nos. 273 to
276/Lkw/2023 have been filed by the assessee against the aforesaid
impugned appellate orders of the learned CIT(A) each dated 10/08/2023.
The grounds of appeal are as under:
I.T.A. No.273/Lkw/2023
“1. The Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld.
CIT-A] erred on facts and in law in dismissing the appeal of the
appellant by passing an ex-parte order without providing
opportunity to the appellant to have his say on the merit of the
penalty levied on him.
14
2. 2. The Ld. CIT-A was not at all justified in dismissing the appeal
of the appellant because of the fact that the appellant's
submissions on the merit of the issue involved in the appeal has
not been taken into consideration and hence the matter
deserves to be remanded back to the file of the Ld. CIT-A for
adjudicating the issue on merit after considering the submission
of the appellant.
WITHOUT PREJUDICE TO GROUND NO 1 & 2 ABOVE:
3. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs.63,846/- levied under section 271B of the I.T. Act,
1961 without appreciating the law that the impugned penalty
order was passed without assuming any proper jurisdiction to
levy any penalty u/s 271B of the Act on ground that:
the initiation of penalty proceeding u/s 271B of the Act
was made through the reassessment order passed u/s 147
of the Act vide order dated 19.03.2022 by office of the
National Faceless Assessment Centre, Delhi and
the levy of penalty u/s 271B could be made by the office
of the Assessing Authority initiating the penalty
proceeding, which in the present case is National Faceless
Assessment Centre, Delhi.
4. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs.63,846/- u/s 271B of the Act by wrongly treating
the assessed income of Rs.1,27,69,388/- assessed by the
Assessing Authority of the National Faceless Assessment Centre,
Delhi as business turnover for the purposes of the provisions of
section 44AB of the I.T. Act, 1961.
5. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs.63,846/- u/s 271B of the Act without appreciating
the fact that neither any show cause notice nor any query was
confronted to the appellant nor was provided any opportunity to
the appellant to have his say on the merit of the penalty levied
on him.”
I.T.A. No.274/Lkw/2023
15
“1. The Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre, Delhi (hereinafter referred to as the Ld.
CIT-A] erred on facts and in law in dismissing the appeal of the
appellant by passing an ex-parte order without providing
opportunity to the appellant to have his say on the merit of the
penalty levied on him.
2. The Ld. CIT-A was not at all justified in dismissing the appeal of
the appellant because of the fact that the appellant's
submissions on the merit of the issue involved in the appeal has
not been taken into consideration and hence the matter
deserves to be remanded back to the file of the Ld. CIT-A for
adjudicating the issue on merit after considering the submission
of the appellant.
3. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs. 1,50,000/- levied under section 271B of the I.T.
Act, 1961 without appreciating the law that the impugned
penalty order was passed without assuming any proper
jurisdiction to levy any penalty u/s 271B of the Act on ground
that
the initiation of penalty proceeding u/s 271B of the Act
was made through the reassessment order passed u/s 147
of the Act vide order dated 19.03.2022 by office of the
National Faceless Assessment Centre, Delhi and
the levy of penalty u/s 271B could be made by the office
of the Assessing Authority initiating the penalty
proceeding, which in the present case is National Faceless
Assessment Centre, Delhi.
4. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs. 1,50,000/- u/s 271B of the Act by wrongly
treating the assessed income of Rs.3,29,58,528/- assessed by
the Assessing Authority of the National Faceless Assessment
Centre, Delhi as business turnover for the purpose of the
provisions of section 44AB of the IT Act.
16
5. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs. 1,50,000/-u/s 271B of the Act without
appreciating the fact that neither any show cause notice nor any
query was confronted to the appellant nor was provided any
opportunity to the appellant to have his say on the merit of the
penalty levied on him.”
I.T.A. No.275/Lkw/2023
“1. The Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre, Delhi [hereinafter referred to as the Ld.
CIT-A] erred on facts and in law in dismissing the appeal of the
appellant by passing an ex-parte order without providing
opportunity to the appellant to have his say on the merit of the
penalty levied on him.
2. The Ld. CIT-A was not at all justified in dismissing the appeal of
the appellant because of the fact that the appellant's
submissions on the merit of the issue involved in the appeal has
not been taken into consideration and hence the matter
deserves to be remanded back to the file of the Ld. CIT-A for
adjudicating the issue on merit after considering the submission
of the appellant.
3. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs. 1,50,000/-levied under section 271B of the
I.T.Act, 1961 without appreciating the law that the impugned
penalty order was passed without assuming any proper
jurisdiction to levy any penalty u/s 271B of the Act on ground
that:
the initiation of penalty proceeding u/s 271B of the Act was
made through the reassessment order passed u/s 147 of the Act
vide order dated 15.03.2022 by office of the National Faceless
Assessment Centre, Delhi and
the levy of penalty u/s 271B could be made by the office of the
Assessing Authority initiating the penalty proceeding, which in
the present case is National Faceless Assessment Centre, Delhi.
17
4. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty Rs. 1,50,000/- u/s 271B of the Act without appreciating
the fact that neither any show cause notice nor any query was
confronted to the appellant nor was provided any opportunity to
the appellant to have his say on the merit of the penalty levied
on him.
5. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs. 1,50,000/-u/s 271B of the Act without
appreciating the fact that neither any show cause notice nor any
query was confronted to the appellant nor was provided any
opportunity to the appellant to have his say on the merit of the
penalty levied on him.”
I.T.A. No.276/Lkw/2023
“1. The Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre, Delhi [hereinafter referred to as the Ld.
CIT-A] erred on facts and in law in dismissing the appeal of the
appellant by passing an ex-parte order without providing
opportunity to the appellant to have his say on the merit of the
penalty levied on him.
2. The Ld. CIT-A was not at all justified in dismissing the appeal of
the appellant because of the fact that the appellant's
submissions on the merit of the issue involved in the appeal has
not been taken into consideration and hence the matter
deserves to be remanded back to the file of the Ld. CIT-A for
adjudicating the issue on merit after considering the submission
of the appellant.
3. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs.1,33,615/-levied under section 271B of the I.T.
Act, 1961 without appreciating the law that the impugned
penalty order was passed without assuming any proper
jurisdiction to levy any penalty u/s 271B of the Act on ground
that:
the initiation of penalty proceeding u/s 271B of the Act
was made through the reassessment order passed u/s 147
18
of the Act vide order dated 15.03.2022 by office of the
National Faceless Assessment Centre, Delhi and
the levy of penalty u/s 271B could be made by the office
of the Assessing Authority initiating the penalty
proceeding, which in the present case is National Faceless
Assessment Centre, Delhi.
4. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs.1,33,615/- u/s 271B of the Act by wrongly treating
the assessed income of Rs.2,67,23,089/- assessed by the
Assessing Authority of the National Faceless Assessment Centre,
Delhi as business turnover for the purposes of the provisions of
section 44AB of the I.T. Act, 1961.
5. The Ld. CIT-A erred on facts and in law in confirming the levy of
penalty of Rs. 1,33,615/-u/s 271B of the Act without
appreciating the fact that neither any show cause notice nor any
query was confronted to the appellant nor was provided any
opportunity to the appellant to have his say on the merit of the
penalty levied on him.”
(D.1) In the foregoing part of this order in paragraph (C.2.1), we have
already set aside the impugned appellate orders of the learned CIT(A) in
respect of quantum additions and have restored the issues in dispute to the
file of the Assessing Officer for fresh orders. As a result quantum of additions
in the fresh assessment order may vary from quantum of additions made in
the assessment orders mentioned in foregoing paragraph (C) of this order;
and accordingly, penalty u/s 271B may vary, if it is deemed fit to levy
penalty. In the fitness of things, therefore, fresh orders levying penalty u/s
271B of the IT Act should be passed, if deemed fit, after the Assessing
Officer passes fresh assessment orders in compliance of our aforesaid
directions contained in foregoing paragraph (C.2.1). Therefore, the
impugned appellate orders of the learned CIT(A) as referred to in foregoing
paragraph (D) of this order, in the present appeals before us (vide ITA
19
Numbers 273 – 276/Lkw/2023) are also set aside. The issue regarding
penalty u/s 271B is restored to the file of the Assessing Officer for
assessment year 2014-15 to 2017-18, and the Assessing Officer is directed to
pass de novo orders u/s 271B of IT Act, if deemed fit in accordance with law,
after providing reasonable opportunity to the assessee; and after passing de
novo assessment orders for assessment years 2014-15 to 2017-18 as per
foregoing directions.
(F) All the grounds of appeal in the aforesaid nine appeals are treated as
disposed of in accordance with aforesaid directions contained in foregoing
paragraphs (C.2.1) and (D.1) of this order. In the result, all the nine appeals
are partly allowed for statistical purposes.
(Order pronounced in the open court on 28/12/2023)
Sd/. Sd/.
(SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA)
Judicial Member Accountant Member
Dated:28/12/2023
*Singh
Copy of the order forwarded to
:
1. The Appellant
2. The Respondent.
3. Concerned CIT
4. D.R., I.T.A.T.,
5. CIT(A)
Assistant Registrar
