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TMI Blog2022 (4) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... years, there were no additions made by the AO while framing assessment u/s 153C read with Section 144 and the returned income stood accepted, while in the year under consideration viz. ay: 2014-15, there are finding by the AO that there are incriminating material belonging to the assessee which was found during search operations conducted by Revenue in the case of Genus Group of cases, on 30. 07. 2015 u/s 132 of the 1961 Act, which has bearing on determination/computation of income of the assessee for ay: 2014-15, and the AO wanted to confront assessee with the seized material, but the assessee did not co-operated with Revenue and no details were filed by the assessee, for ay: 2014-15 in compliance to questionnaire/directions issued by the AO, which ultimately led to additions being made by the AO while framing quantum assessment for ay: 2014-15. Even, the assessee did not appeared before the AO in response to summons issued by the AO u/s 131 of the 1961 Act. The appeal against quantum assessment filed by the assesse is pending before ld. CIT(A) for adjudication. Thus, the order dated 16. 10. 2019 passed by tribunal is clearly distinguishable on the facts. We are of the conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der. These six appeals were heard by Division Bench of Varanasi Circuit Bench of the tribunal in Physical mode in Open Court hearings. We shall take up first take up appeal filed by the assessee in ITA No. 152-154/VNS/2019, all three appeals filed for ay: 2014-15, and our decision in ITA No. 152-154/VNS/2019, for ay: 2014-15, shall apply mutatis mutandis to all the remaining three appeals in ITA no s 155-157/VNS/2019 for ay: 2015-16 respectively, as similar issues are involved in both the years with similar facts. 2. The grounds of appeal raised by assessee in memo of appeal filed with tribunal ITA no. 152/VNS/2019, for ay: 2014-15, reads as under: 1. Because the learned CIT(Appeals) has erred in law as well as on facts in confirming penalty u/s. 271(1)(b) without appreciating the facts and circumstances of the case in the correct legal perspective. 2. Because the learned CIT(Appeals) has erred in law as well as on facts in confirming penalty u/s 271(1)(b) without appreciating that the learned AO had levied multiple penalties for non-appearance on three different dates without appreciating that there was neither proper service of notice nor was there any query. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on 24. 09. 2018, but again none attended on behalf of the assessee. The AO issued fresh notice dated 10. 10. 2018 u/s 142(1), for compliance on 16. 10. 2018, but again none attended on behalf of the assessee. The AO issued penalty notice dated 10. 10. 2018 u/s 271(1)(b) of the 1961 Act for failure to comply with notice dated 14. 09. 2018 u/s 142(1) issued by the AO to the assessee, the date of compliance in the penalty notice dated 10. 10. 2018 was fixed for 16. 10. 2018, but there was again no compliance by the assessee. The AO issued penalty notice dated 20. 11. 2018 u/s 271(1)(b) of the 1961 Act for failure to comply with notice dated 10. 10. 2018 u/s 142(1) issued by the AO to the assessee, the date of compliance in the penalty notice dated 20. 11. 2018 was fixed for 26. 11. 2018, but there was again no compliance by the assessee. The AO again issued notice dated 20. 11. 2018 u/s 142(1) of the 1961 Act, fixing the date for compliance on 26. 11. 2018. The assessee filed power of attorney dated 21. 11. 2018 and Balance Sheet, Trading, Profit and Loss Account for the year ended on 31. 03. 2014 through e-filing proceedings, but no other details as were called for by the AO vide q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notices by the AO, as to why penalty be not levied u/s 271(1)(b), and the AO had claimed to have served these SCN s dated 10. 10. 2018, 20. 11. 2018 and 14. 12. 2018 on the assessee, but the AO has observed that there was no compliance by the assessee to the aforesaid show cause notice s(SCN s), which led AO to levy penalty of ₹ 10000 each u/s 271(1)(b) for each default in not complying with each notice issued u/s 142(1) of the 1961 Act, vide three separate penalty orders for ay: 2014-15, dated 01. 11. 2018, 03. 12. 2018 and 20. 12. 2018 respectively, for three separate default(s) made by assessee to comply with the three separate notices all issued u/s 142(1) of the 1961 Act, dated 14. 09. 2018, 10. 10. 2018 and 06. 12. 2018 respectively. Till these three aforesaid separate penalty orders were passed by the AO u/s 271(1)(b), the assessee has not filed any return of income, in compliance to notice dated 22. 03. 2018 u/s 153C issued by the AO, requiring assessee to file return of income, within 30 days of service of notice, nor any reply to questionnaires issued by the AO were filed by the assessee, except that the assessee filed power of attorney dated 21. 11. 2018 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice u/s 274 r. w. s. 271(1)(b) was issued on 20. 11. 2018 for making compliance on 26. 11;2018, this notice was served through E-mail. A perusal of penalty order reveals that no compliance to this notice was made,. (iii) The appeal No. 10330/CIT(A)/VNS/2018-19 has been filed against penalty order dated 20. 12. 2018 passed u/s 271(1)(b) of the IT Act passed for making non compliance to notice u/s 142(1) of the I T Act dated 06. 12. 2018 fixing the date of compliance on 10. 12. 2018. The show cause notice u/s 274 r. w. s. 271(1)(b) was issued on 14. 12. 20189 for making compliance on 17. 12. 2018, this notice was served through E-mail. A perusal of penalty order reveals that no compliance to this notice was made. 3. During the course of appellate proceedings, it was submitted that penalty order have been passed without appreciating the facts and circumstances of the case in the correct perspective and that no notices were served. It was further submitted that no addition has been made in the assessment order passed. 4. (i) In this case, the A. O. has given his report that the penalty orders in respect to Appeal No. 10328/CIT(A)/VNS/2018-19 was served upon the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... based on the report called from the AO that all the three show cause notice s(SCN s) issued by the AO u/s 274 read with Section 271(1)(b) for ay: 2014-15, in all the three cases for which penalty was finally levied by the AO u/s 271(1)(b) vide separate penalty orders, were duly served on the assessee, while the assessee did not made any compliance to such SCN s. The ld. CIT(A) dismissed all the three appeals filed by the assessee for ay: 2014-15, vide common appellate order dated 15. 04. 2019 5. Aggrieved by the common appellate order passed by ld. CIT(A) dismissing all the three appeals filed by the assessee for ay: 2014-15, vide common appellate order dated 15. 04. 2019 for ay: 2014-15, the assessee has now filed three separate appeals for ay: 2014-15 before the tribunal, bearing number s in ITA no. 152- 154/VNS/2019. These appeals were heard in physical mode in Open Court hearing. The ld. Counsel for the assessee opened arguments before the Division Bench and submitted that there were proceedings initiated against the assessee by the AO u/s 153C of the 1961 Act. There was a search and seizure operations conducted by Revenue on 30. 07. 2015, u/s 132 of the 1961 Act in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beyond the time prescribed u/s 249(2) of the 1961 Act. It was submitted that the assessee neither showed any sufficient cause before ld. CIT(A), for not filing appeal(s) in time, nor any condonation application(s) were filed. It was also submitted by ld. Sr. DR that the assessee did not appeared before the AO, during the course of assessment proceedings, and the assessment order was a best judgment assessment order passed u/s 153A read with Section 153C/144 of the 1961 Act. The ld. Sr. DR submitted that the assessee is relying on the appellate order dated 16. 10. 2019 passed by tribunal, for ay: 2012-13, 2013- 14 and 2016-17, wherein tribunal deleted penalty levied u/s 271(1)(b) of the 1961 Act, but the facts in those years are distinguishable than in the impugned ay: 2014-15, as in those assessment years, there were no additions made by the AO to the returned income and consequently returned income was accepted by the AO, while in the impugned assessment year 2014-15, there were seizure of incriminating material which belonged to the assessee and which reflected income pertaining to the assessee not disclosed in the return of income,which ultimately led to the additions to the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty by AO u/s 271(1)(b) of the 1961 Act which is justifiable and needs to be upheld. In the alternative, the ld. Sr. DR submitted that the matter can be restored to the file of ld. CIT(A) for fresh adjudication, as the quantum appeals against assessment framed by the AO, are pending for disposal before ld. CIT(A). 5.3 The ld. Counsel for the assessee submitted in rejoinder, that in the cases decided by the tribunal for ay: 2012-13, 2013-14 and 2016-17, there were delay in filing of appeals as alleged by Revenue. The ld. Counsel for the assessee also submitted that quantum appeals against assessment framed by the AO, are pending for disposal before ld. CIT(A). It was submitted that facts in the impugned assessment year 2014-15 are identical to the facts in ay: 2012-13, 2013-14 and 2016-17, and reliance was placed on the tribunal order dated 16. 10. 2019 deleting penalty for these three ay s: 2012-13, 2013-14 and 2016-17, and prayers were made that rule of consistency be followed and penalty levied u/s 271(1)(b) vide three separate orders be also deleted. 6. We have heard both the rival parties and perused the material on record, including order passed by tribunal in assessee s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 14. 09. 2018 u/s 142(1) issued by the AO to the assessee, the date of compliance in the penalty notice dated 10. 10. 2018 was fixed for 16. 10. 2018, but there was again no compliance by the assessee. The AO issued penalty notice dated 20. 11. 2018 u/s 271(1)(b) of the 1961 Act for failure to comply with notice dated 10. 10. 2018 u/s 142(1) issued by the AO to the assessee, the date of compliance in the penalty notice dated 20. 11. 2018 was fixed for 26. 11. 2018, but there was again no compliance by the assessee. The AO again issued notice dated 20. 11. 2018 u/s 142(1) of the 1961 Act, fixing the date for compliance on 26. 11. 2018. The assessee filed power of attorney dated 21. 11. 2018 and Balance Sheet, Trading, Profit and Loss Account for the year ended on 31. 03. 2014 through e-filing proceedings, but no other details as were called for by the AO vide questionnaire were submitted by the assessee. The AO issued fresh notice dated 06. 12. 2018 u/s 142(1) of the 1961 Act, for compliance on 10. 12. 2018. The AO also simultaneously issued summons dated 06. 12. 2018, u/s. 131 of the 1961 Act, for compliance on 10. 12. 2018. There was no compliance by the assessee, either to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which led AO to levy penalty of ₹ 10000 each u/s 271(1)(b), vide three separate orders for ay: 2014-15 dated 01. 11. 2018, 03. 12. 2018 and 20. 12. 2018 respectively, for three separate default(s) made by assessee to comply with the three separate notices all issued u/s 142(1) of the 1961 Act, dated 14. 09. 2018, 10. 10. 2018 and 06. 12. 2018 respectively. Till these three aforesaid separate penalty orders were passed by the AO u/s 271(1)(b), the assessee has not filed any return of income, in compliance to notice dated 22. 03. 2018 u/s 153C issued by the AO, requiring assessee to file return of income, with in 30 days of service of notice, nor any reply to questionnaires issued by the AO were filed by the assessee, except that the assessee filed power of attorney dated 21. 11. 2018 and Balance Sheet, Trading and Profit and Loss account for the year ended 31. 03. 2014 through e-filing proceedings. Thereafter, subsequent to the levy of three penalties u/s 271(1)(b) of ₹ 10000/- each, vide three afore-stated penalty orders by the AO dated 01. 11. 2018, 03. 12. 2018 and 20. 12. 2018 respectively, the assessee filed reply through e-proceedings on 24. 12. 2018, as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not admitted the appeal of the assessee, as the appeal was held to be filed by the assessee beyond the time allowed u/s 249(2) by ld. CIT(A), based on the report of the AO. The appellate order passed by ld. CIT(A) is reproduced above in this order, which is an order dismissing appeal of the assessee in limine due to non admission of appeal by ld CIT(A), without discussing the issue s in appeal on merits. The ld. CIT(A) observed that the assessee has neither shown sufficient cause for filing of its appeal belatedly beyond the time prescribed u/s 249(2), nor any application for condonation of appeal is filed by the assessee. We have observed from the Form No. 35 filed by the assessee with ld. CIT(A) which is placed on record in file, that it is claimed by the assessee, that all the three penalty orders passed by the AO u/s 271(1)(b) were received by the assessee, on 31. 01. 2019, and the appeal was filed before ld. CIT(A) on 07. 02. 2019, which is within 7 days of receiving of penalty orders. This is a disputed fact which required proper adjudication after hearing the assessee, as it has a bearing on maintainability of the appeal before ld. CIT(A). Further, the assessee has also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided to assessee to bring on record complete details/evidences in support of its contentions. Thus, based on totality of facts and circumstances of the case, we are setting aside the matter to the file of ld. CIT(A) for fresh adjudication of the issue. Further, if advised, the assessee can file condonation application before ld. CIT(A) explaining sufficient cause, and it is for ld. CIT(A) to adjudicate the admissibility of appeal or otherwise, on merits in accordance with law. We clarify that we have not commented on the merits of the issue in these three appeals, for ay: 2014-15, and all the contentions are kept open. Thus, the assessee s three appeal(s) in ITA No. 152-1154/VNS/2019, for ay: 2014-15, are allowed for statistical purposes. We order accordingly. 7. In the result, all the three appeals in ITA no. 152-154/VNS/2019 filed by assessee, for ay: 2014-15, are allowed for statistical purposes. 8. Since the issue involved in assessee s appeal in ITA no(s). 152-154/VNS/2019, for ay: 2014-15, are similar to issues involved in assessee s appeal in ITA no(s). 155 to 157/VNS/2019, for ay:2015-16, our decision in ITA Nos. 152-154/VNS/ 2019 shall apply mutatis mutandis to appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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