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TMI Blog2018 (9) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... y learned Assessing Officer (hereinafter called "the AO") u/s 271(1)(c) of the Income-tax Act, 1961 (hereinafter called "the Act") for AY 2009-10. 2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called "the tribunal") read as under:- "1. On the facts and circumstances and in law, the Learned Commissioner of Income-Tax (Appeals)-33, Mumbai erred in dismissing the appeal of the Appellant against penalty levied of Rs. 10,63,417/- u/s.271(1)( c) of the I.T. Act 1961 and therefore, penalty levied be deleted/ cancelled. 2. On the facts and circumstances and in law, the Learned Commissioner of Income-Tax (Appeals)-33, Mumbai erred disposing the appeal wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . for corporate offices, factories, societies and banks. The assessee had filed return of income and after the case was selected for scrutiny wherein notices u/s. 143(2) and 142(1) of the 1961 Act were already issued by Revenue, the assessee came forward and revised its income not by filing revised return of income but by filing revised computation of income before the AO declaring revised income of Rs. 48,19,660/- as against income of Rs. 24,20,078/- originally declared in return of income filed with Revenue . The main reason stated by assessee for filing the said revised computation of income during the course of assessment proceedings before the AO was on account of alleged misappropriation by accountant wherein the said accountant did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue. 4. On being aggrieved by levy of penalty of Rs. 10,63,417/- by the AO u/s 271(1)(c) of the 1961 Act vide orders dated 26.06.2012, the assessee filed first appeal with Ld. CIT(A) which was dismissed by learned CIT(A) ex-parte in the absence of the assessee . The assessee did not entered appearance before Ld. CIT(A) who dismissed the appeal of the assessee ex-parte and confirmed the penalty levied by the AO u/s 271(1)(c) of the 1961 Act, vide appellate order dated 31.10.2013. 5. Aggrieved by the ex-parte dismissal of its appeal by learned CIT(A) and consequently confirmation of penalty by learned CIT(A) in appellate proceedings vide orders dated 31.10.2013, the assessee has now come in an appeal before the tribunal . 6. We have obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and admit this appeal to be adjudicated on merits in accordance with law. We order accordingly. 7. The assessee has in grounds of appeal and statement of facts filed with the tribunal , inter-alia, raised the plea that notice of hearing stated to be issued by learned CIT(A) on 09.07.2013 and 18.10.2013 were never served on the assessee. . It is also averred in appeal filed before tribunal that principles of natural justice are breached by learned CIT(A) as the appellate order is passed by learned CIT(A) without providing an adequate opportunity of being heard to the assessee and it is claimed that finding of learned CIT(A) are perverse so far as it states that the assessee had left the premises /address stated in form no 35 without informi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty guards, vehicle escort etc. for corporate offices, factories, societies and banks. We have observed that the assessee filed its return of income declaring income of Rs. 24,20,078/- with Revenue which income was later revised to Rs. 48,19,660/- by filing of the revised computation of income before the AO. It is undisputed that the assessee did not filed revised return of income and it is also equally undisputed that the said revised computation of income enhancing the income was filed subsequent to the issuance of notices u/s. 143(2) and 142(1) of the 1961 Act by the AO. The reasons stated for said revision of the income during the assessment stage was the misappropriation by accountant of the assessee who is stated to have concealed cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissal of his appeal and passing of the appellate order ex-parte in haste can be made out from the grounds of appeal and statement of fact before us . The learned CIT(A) had infact decided the appeal exparte in the absence of assessee mainly on the grounds of his non appearances and disbelieving the contention that the assessee voluntarily filed revised computation of income before the AO post issuance of notice u/s 143(2) and 142(1) by the AO during scrutiny proceedings. Keeping in view totality of the circumstances and entire factual matrix of the case, we are inclined to set aside and restore the matter to the file of learned CIT(A) for fresh adjudication of all the issues arising in this appeal on merits in accordance with law. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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