Shri Rajiv Bansal, Kanpur vs Assessee

Shri. Rajiv Bansal v. ACIT-I 52/33, Nayaganj Kanpur Kanpur TAN/PAN:AAOPB9254F (Appellant) (Respondent)

Appellant by: Shri. S. K. Jain, FCA Respondent by: Shri. Punit Kumar, D.R. Date of hearing: 30 03 2015 Date of pronouncement: 31 03 2015

ORDER

PER SUNIL KUMAR YADAV:

This appeal is preferred by the assessee against the order of the ld. CIT(A), inter alia, on the following grounds:-

1. That the Ld. CIT(A)-II, Kanpur has erred in law and on facts in sustaining the penalty of Rs.1,00,000/- imposed arbitrarily by the Ld. AO u/s 271B of the Income tax Act, 1961.

2. That the Ld. CIT (A)-II, Kanpur has also erred in law and on facts in passing an ex-parte order dated 22.09.2014, without giving an opportunity of being heard to the appellant and also without considering written reply dated 12.09.2014 filed through speed post in the office of the Ld. CIT(A)-li, Kanpur on 15.09.2014.

3. That the CIT (A)-II, Kanpur has upheld the impugned penalty order merely on conjectures, presumptions & hypothesis and also without considering full facts and the relevant provisions of the Income Tax Act, 1961, particularly the written submissions dated 12.09.2014 filed by the appellant through :-2-:

speed post No. EU697342316IN (delivered on 15.09.2014), therefore also, the order under appeal is contrary to the principles of natural justice and equity and is liable to be quashed.

4. That the Ld. CIT(A)-II, Kanpur while sustaining the penalty imposed by the Ld. AO u/s 27IB of the Income tax Act, 1961 has failed to consider and appreciate that the books of account, CPU etc. were impounded by the income tax Authorities in the course of survey under section 133A of the Income Tax Act, 1961 conducted on 24.02.2010 and their copies were not given to the appellant until 13.02.2013 despite written requests vide letters dated 12.08.2010 & 03.12.2012, hence the appellant was prevented by reasonable and sufficient cause in not getting the books of account audited under section 44AB of the Income tax Act, 1961 upto the prescribed time limit i.e. 30.09.2010.

5. That the order of Ld. CIT (A)-1, Kanpur confirming the penalty levied under section 271B of the Income tax Act,1961, is unsupportable in law and on facts and is liable to be quashed.

6. That any other relief or reliefs as may be deemed fit in the case & circumstances of the case be granted.

2. During the course of hearing, the ld. counsel for the assessee has invited our attention that the ld. CIT(A) has disposed of the appeal ex-parte against the assessee even without considering the written submissions filed before him. In support of his contention, the ld. counsel for the assessee has submitted that the assessee had sent the written submissions to the ld. CIT(A) by speed post on 12.9.2014 and the same was received in his office on 15.9.2014. The ld. CIT(A) has disposed of the appeal vide order dated 22.9.2014. In order to establish these facts, the ld. counsel for the assessee has filed the copies of the written submissions and the track record of the postal authorities. Our attention was also invited to the order of the ld. CIT(A) with the submission that there is no reference of the written submissions filed by the assessee in the order of the ld. CIT(A).

:-3-:

Since the ld. CIT(A) has disposed of the appeal without considering the written submissions of the assessee, the order of the ld. CIT(A) may kindly be set aside and the matter may be restored to his file with a direction to re-adjudicate the appeal in the light of the written submissions filed by the assessee and also after affording an opportunity of being heard to the assessee.

3. The ld. D.R. has simply placed reliance upon the order of the ld.

CIT(A).

4. Having carefully examined the order of the ld. CIT(A) and the documents filed by the assessee, we find that the assessee had sent written submissions through speed post on 12.9.2014 and the same was received in the office of the ld. CIT(A) on 15.9.2014 and the ld. CIT(A) passed the order on 22.9.2014, meaning thereby the ld. CIT(A) has passed the order after receipt of the written submissions of the assessee, but he has not considered the written submissions filed by the assessee while disposing of the appeal. In the light of these facts, we are of the view that the ld. CIT(A) has disposed of the appeal without considering the submissions made on behalf of the assessee. We, therefore, set aside the order of the ld. CIT(A) and restore the matter to his file with a direction to re-adjudicate the appeal afresh after affording an opportunity of being heard to the assessee.

5. In the result, appeal of the assessee is allowed for statistical purposes.

Order was pronounced in the open court on the date mentioned on the captioned page.

Sd/- Sd/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER

DATED: 31st March, 2015 JJ:3003 :-4-:

Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR Assistant Registrar