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2022 (4) TMI 1385 - AT - Income TaxPenalty u/s. 271(1)(b) - assessment u/s 153C - Assessee argued 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 - HELD THAT:-. As could be seen, the AO issued only one notice u/s 274 read with Section 271(1)(b) in each of the three cases where penalty u/s 271(1)(b) was levied, for ay: 2014-15, before prejudicing the assessee, which SCN itself is disputed by the assessee to have not been served on the assessee as the assessee has denied that he was never served with SCN’s, which also touches upon the adherence to the principles of natural justice. It is also observed that tribunal passed a common order dated 16. 10. 2019, for ay: 2012-13, 2013-14 and 2016-17, wherein penalty levied u/s 271(1)(b) by AO and confirmed/upheld by ld. CIT(A) stood deleted, but we have observed that factual matrix in the case before us for impugned assessment year 2014-15 differs from the facts as are emerging from records for ay: 2012-13, 2013-14 and 2016-17, as in those 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 considered view in the impugned case before us one more opportunity be provided 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) for ay: 2014-15, are allowed for statistical purposes.
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