2013 (7) TMI 137 - AT - Income Tax

Penalty u/s 271(1)(c) - concealment of the particulars of income under ESOP - CIT(A) deleted the levy - assessee was picked up for scrutiny u/s 147 by the AO after conducting the inquiry u/s 133(6) - Held that - AO had completed assessment proceedings ex parte in the absence of assessee and his representative. CIT(A) held that the notices were not properly served on the assessee and the AO should have traced him through ex-employer of the assessee. Accordingly, the assessee could have got reasonable opportunity of hearing before the AO and the findings of the CIT(A) are also based on the details submitted by the assessee during the first appellate proceedings but the same was not confronted to the AO. Thus the order is cryptic and does not contain necessary discussion, observation and findings for ordering the AO to delete the penalty imposed on the assessee u/s 271(1)(c) - the issue to be restored to the file of AO to decide the issue on merits after giving due opportunity of hearing to the assessee.

Issues:
1. Deletion of penalty u/s 271(1)(c) by CIT(A)
2. Non-compliance with notices during quantum and penalty proceedings
3. Ex parte assessment proceedings
4. Service of notice u/s 143(2) and 142(1) of the Act
5. Interpretation of AO's actions
6. Restoration of penalty proceedings to Assessing Officer

Analysis:

1. The appeal was filed by the revenue against the order of ld. CIT(A) deleting the penalty u/s 271(1)(c) levied by the AO. The grounds raised included the concealment of income under ESOP and the case being picked up for scrutiny u/s 147. The CIT(A) allowed the appeal, stating that the penalty was not justified due to improper service of notices and lack of cooperation from the assessee. The CIT(A) directed the AO to delete the penalty as the appellant had paid full tax with interest and had a reasonable cause for non-compliance.

2. The assessment was completed ex parte as the assessee did not attend the proceedings, leading to the penalty imposition by the AO. The CIT(A) observed that the notices were not properly served on the assessee, who believed his CA had filed the returns. The non-service of notices u/s 143(2) and 142(1) was deemed bad in law, leading to the deletion of the penalty by the CIT(A).

3. Both the quantum and penalty proceedings were completed ex parte due to non-compliance by the assessee. The AO imposed the penalty under section 271(1)(c) for concealing income from the sale of shares. The DR argued for the restoration of the penalty order, stating that the assessee had not declared the capital gain, justifying the penalty imposition.

4. The issue of service of notices during the assessment proceedings was crucial in the decision to delete the penalty. The CIT(A) held that the non-service of notices led to heavy penalties and annulled assessments. The failure to properly serve notices was considered a significant factor in deleting the penalty imposed by the AO.

5. The interpretation of the AO's actions was questioned, with the CIT(A) finding them incorrect and fallacious. The lack of proper communication and tracing of the assessee through ex-employer were highlighted as reasons for deleting the penalty. The CIT(A) deemed the penalty unjustified based on the facts and law presented.

6. The Tribunal set aside the CIT(A)'s order and directed the restoration of the penalty proceedings to the Assessing Officer. The AO was instructed to decide on the penalty merits after giving the assessee a fair hearing. The Tribunal emphasized the need for proper discussion and findings in the penalty imposition process, leading to the decision to restore the issue to the AO for further consideration.

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