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2020 (12) TMI 465 - AT - Income TaxPenalty u/s 272A(2)(k) - Order was passed by the AO ex parte when nobody has appeared or attended the proceedings - payment and deduction of TDS in terms of Section 204 - assessee has challenged the validity of the order on the ground that the Principal of the college is not the responsible person against whom the AO has initiated the penalty proceedings and passed the impugned order but the Manager of the school is the person who is responsible for payments of salary and other dues to the employees as well as deduction of TDS - HELD THAT - Delay / default in filing of TDS return is not attributable to the Principal of the college. Since this issue raised by the assessee in the additional ground is taken first time before the Tribunal and was not raised before the authorities below therefore, the relevant record on this aspect is required to be properly verified. Assessee has also sought to produce the additional evidence to show that the Manager of the college is the responsible officer under section 204 of the Income Tax Act. It is pertinent to note that when the assessee has not appeared before the AO and allowed the impugned order to be passed under section u/s 272A(2)(k) of the Income Tax Act and thereafter the appeals of the assessee were also dismissed by the CIT(A) ex parte, then this ground raised by the assessee at this stage raises the question whether without bringing this fact on record during the penalty proceedings, the issue raised by the assessee can be conclusively decided at this stage. Accordingly, in the facts and circumstances of the case and in the interest of justice these appeals are set aside to the record of the Assessing Officer to verify all the facts as alleged by the assessee in the additional ground and then pass a fresh order under u/s 272A(2)(k) of the Act. Needless to say the assessee be given an appropriate opportunity of hearing. All the appeals are allowed for statistical purposes.
Issues Involved:
1. Condonation of delay in filing appeals. 2. Validity of the penalty order under section 272A(2)(k) of the Income Tax Act. 3. Responsibility of the person against whom the penalty was levied. 4. Ex parte dismissal by CIT(A) and lack of proper opportunity of hearing. Issue-wise Detailed Analysis: 1. Condonation of Delay in Filing Appeals: The assessee filed appeals with a delay of 271 days, supported by an affidavit explaining the delay due to the school premises being used for board examinations and subsequent misplacement of records. The delay was argued to be unintentional and due to circumstances beyond control. The Tribunal considered the reasons provided, noting that the delay was not mala fide or for any ulterior purpose. Emphasizing a lenient view, the Tribunal condoned the delay in the interest of substantial justice, as the reasons were found to be genuine and not an attempt to cover up negligence. 2. Validity of the Penalty Order under Section 272A(2)(k): The assessee challenged the penalty order under section 272A(2)(k) read with section 200(3) of the Income Tax Act, contending that the CIT(A) dismissed the appeal ex parte without deciding it on merits and without providing a proper opportunity for hearing. The Tribunal noted that the CIT(A) issued multiple notices, but the assessee claimed not to have received the last two notices. The Tribunal found that the CIT(A) dismissed the appeal summarily without a detailed discussion on the facts or grounds raised, which rendered the order unsustainable in law. 3. Responsibility of the Person Against Whom the Penalty Was Levied: The assessee argued that the penalty proceedings were initiated against the Principal, who was not the responsible person for TDS matters as per section 204 of the Income Tax Act. The responsible person was claimed to be the Manager of the college, as per the memorandum of association, who handled financial matters including TDS. The Tribunal found that this issue was raised for the first time before the Tribunal and required verification of relevant records. The Tribunal directed the Assessing Officer (AO) to verify the facts and determine the correct responsible person under section 204. 4. Ex Parte Dismissal by CIT(A) and Lack of Proper Opportunity of Hearing: The Tribunal observed that the CIT(A) dismissed the appeal ex parte without a speaking order, based on the non-attendance of the assessee. The assessee claimed not to have received the subsequent notices after an initial adjournment. The Tribunal held that the lack of a detailed order by CIT(A) and the ex parte dismissal without proper hearing were procedural lapses. The Tribunal emphasized the need for a justice-oriented approach and directed the AO to re-examine the case, providing the assessee a fair opportunity to present their case. Conclusion: The Tribunal allowed the appeals for statistical purposes, setting aside the penalty orders and directing the AO to verify the facts and pass a fresh order under section 272A(2)(k) of the Income Tax Act after providing the assessee with an appropriate opportunity of hearing. The Tribunal emphasized the importance of substantial justice over technicalities and procedural fairness in the adjudication process.
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