9911796707
TMI Blog1977 (11) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee had also not filed the estimate of advance tax payable by him for the asst. yr. 1970-71. On the failure of the assessee to appear before the ITO in response to the show cause notice, penalty amounting to Rs. 1,285 was levied on him under s. 273(a) of the said Act. 4. Similarly, the ITO levied a penalty of Rs. 655 on the assessee under s. 273(a) of the IT Act, 1961 on his failure to explain his default in not filing the estimate of advance tax payable by him for the asst. yr. 1972-73. 5. On appeal, the AAC by his consolidated order upheld the aforesaid penalty orders. Aggrieved by this order the assessee has filed the present appeals. 6. It is not disputed by the learned Representative of the assessee before us that the assessee comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty orders on 28th Feb., 1973, despite the absence of the assessee on that date. Therefore, therefore, was a change in incumbent and the penalty orders were passed by Shri S.N. Mishra after about 2 years i.e. on 31st Jan., 1975. Now, s. 129 of the IT Act, 1961 provides that whenever, during the pendency of any proceedings, the ITO is succeed by another ITO, the successor may continue the proceedings from the stage at which the proceeding was left by his predecessor, but the assessee has a right to demand that, before the proceeding is so continued, either the previous proceeding should be reopened or he should be reheard before any order is passed against him. To enable the assessee to exercise this right, it is implicit in this sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee by the successor ITO before he imposes penalty on him. This opportunity has to be real and not a mere empty formality. Now, in the present case, no such opportunity was given by Sri S.N. Mishra, ITO, before passing the penalty orders. In fact, no action was taken for about two years after the service of the show cause notice issued by Sri P.S. Audhya and then the penalty order were passed in routine by Shri S.N. Mishra without hearing the assessee. In these circumstances, we are of the opinion that there was a violation of the principles of natural justice and no reasonable opportunity of being heard was given by the ITO to the assessee before levying the penalties in question. We are, therefore, unable to confirm the same. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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