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TMI Blog2018 (12) TMI 313X X X X Extracts X X X X X X X X Extracts X X X X ..... .2015 for Assessment Year (AY) 2012-13. The second appeal is in respect of the confirmation of the levy of penalty u/s. 271(1)(c) of the Act by the ld. CIT(A) qua the impugned assessment by the Assessing Officer (AO) dated 21/9/2015, vide his order dated, again, 31/3/2017. 2. The only prayer by the assessee's counsel, Shri P.N. Arora, before us, despite the assessee's appeals raising several grounds, was that the impugned orders confirming the assessment as well as the penalty being ex parte orders, the matters be restored back to the file of the first appellate authority for adjudication on merits, i.e., setting aside the impugned orders. Even as the same mention several dates - which we observe to be over a period of ten months, i.e., be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notices of hearing were indeed addressed to the Kathua address. However, there was a letter dated 17/1/2017 by the assessee, seeking adjournment, in both the appeal files, which was read out by the ld. DR. the same clearly implies that the assessee had received the notice/s of hearing, and in both the appeals, which were in fact concurrently under hearing before the ld. CIT(A), rebutting the assessee's statement before us as well as it's affidavit dated 13/8/2018 which, as its' close reading reveals, is restricted by the assessee only to the quantum appeal. Sh. Arora would, upon this, state that the same, however, does not materially alter the assessee's case in-as-much as it may be that the assessee had received one or two of the (sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that there has been a denial of proper opportunity (of representation) by the authority whose order is under challenge before it. In the facts of the case, the ld. CIT(A) has apparently sent the notices (of hearing) to the Kathua address, which is the specified address for communication in one of the Form 35, i.e., in the penalty proceedings, while the other Form 35 specifies the Delhi address. The office of the ld. CIT(A), thus, could not be faulted for sending the notice, where so, to the Kathua address, at least in-so-far as the appellate proceedings in the penalty appeal are concerned. In fact, that further only implies that the Kathua address was a valid address, at least for communication, at the relevant time, so that either the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a proper address. The three notices post 20.01.2017, i.e., to which date the proceedings were adjourned from 18.01.2017, were, again, in both the appeals, at the Kathua address. This is surprising as the change in the address in the subsequent notices of hearing would, presumably, only be upon it being brought to the notice of the ld. CIT(A) that the notices were not being received at the address mentioned or of the same being not correct. Though none appeared in both the appeals on each of these three dates, we are inclined to give the assessee the benefit of doubt. This is as the address for communication as specified in Form 35 (in quantum proceedings) is clearly stated to be the Delhi address, with there being no indication of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is not sustainable. In the facts of that case, the Assessing Officer had expressed satisfaction with the regard to the concealment of particulars of income, but had levied penalty for concealment/furnishing inaccurate particulars of income. The Tribunal, expressing the majority view; the matter having traveled to a third member (who had passed his order u/s. 255(4) on 07.05.2018), held that a penalty order imposing penalty u/s. 271(1)(c) in such a manner is not sustainable in law. In the present case, the AO has in fact levied the penalty on both the counts. We are, however, in view of the set aside afore-said, even as observed during hearing, disinclined to dwell in the matter. The assesssee is at liberty to raise all issues, factual or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lment of particulars of income, may also have a bearing in the matter. It is under these circumstances that it is, as indicated by the Bench during hearing, considered proper that the matter be decided by the first appellate authority while considering the assessee's appeal, which also remains to be decided by him on quantum. Under the circumstances, it may not be proper for the tribunal to proceed to decide the appeal on penalty on merits, and explains the disinclination of the tribunal to decide the penalty on merits. 5. We decide accordingly. 6. In the result, the assessee's appeals are allowed for statistical purposes. Order pronounced in the open court on November 26, 2018 Sd/- (Sanjay Arora) Accountant Member Per N K Chou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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