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2023 (8) TMI 915 - AT - Income TaxPenalty levied u/s 271(1)(c) - application for condonation of delay rejected - assessee filed appeal after delay of 25 months - disallowance of exemption u/s 11(1)(d) and disallowance of expenses - as per assessee they were not served penalty order and/ or that came to know about the impugned penalty order only on 13.05.2021 - HELD THAT:- We find that assessee has filed copy of screenshot of the inbox of email of omconsultancy1963@yahoo.com, on careful perusal of such screenshot, we find that it shows only mail received from surat.ito.exem@incometax.gov.in is about the show cause notice and there is no mail regarding order under section 271(1)(c) - CIT(A) has neither verified the facts pleaded by the assessee in his application of condonation of delay nor sought comment of assessing officer nor he verified the fact from e-mail of assessing officer, whether the impugned order was sent on registered e-mail or not. Thus, in absence of contrary evidence, we do not find any justification in rejecting the application for condonation of delay and in dismissing the appeal unadmitted. We further find that merit in the submission of assessee that assessee-trust were contesting all the proceedings in quantum assessment and ultimately succeeded. Therefore, there was no justification in dismissing the application of condonation of delay when the assessee has filed affidavit of one of the trustee deposing on oath that they never came to know about passing the impugned penalty order prior to 13.05.2021. We find one more reason that assessee ultimately succeeded in quantum assessment, much before filing appeal in penalty proceedings. In such peculiar situation the order of Ld. CIT(A) in dismissing the application for condonation of delay is set aside. As to merit of the case, we find that in appeal for quantum assessment, the addition on account of disallowance for exemption under section 11 as well as disallowance of expenses was deleted and the appeal of assessee was allowed by this Tribunal in [2020 (4) TMI 576 - ITAT SURAT] therefore, the impugned penalty under section 271(1)(c) would not survive. Decided in favour of assessee.
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