TMI Blog2015 (7) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty order are ex parte orders. The moment, the assessee will file any application for permission to adduce additional evidences then, as per sub-rule -3 of Rule 46A of IT Rules, 1962, the ld. first appellate authority will have to call for a remand report from the AO. The second proceeding would commence at the level of AO. Therefore, with a view to avoid multiple proceedings, we deem it appropriate to set aside the orders of CIT(A) as well as the orders of AO and remit the issues in quantum appeal to the file of AO for re-adjudication. As observed earlier we do not appreciate the conduct of assessee also. He is directed to co-operate with the AO and appear before him. He shall file all necessary details for the assessment of his income. The observations made by us will not impair or injure the case of AO and will not cause any prejudice to the defence/explanation of the assessee. The ld. AO shall provide due opportunity of hearing. As far as penalty appeal is concerned, since we have set aside the assessment order, there are no additions on which it can be alleged that assessee has evaded the taxes. After passing the assessment order, it is for the AO to assess whether pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order, according to his best judgment under section 144 of the Act. The ld. AO has determined the taxable income of the assessee at ₹ 75,87,098/-. This order has been passed on 28.12.2011. The AO has added the gross receipts in the hands of the assessee. 4. Dissatisfied with the assessment order assessee filed an appeal before the ld. CIT(A) on 16.8.2012. The office of the CIT(A) confronted the assessee that his appeal is time barred by 199 days. The assessee filed an application for condonation of delay and filed his affidavit in support of his application. 5. The ld. A.O. has initiated penalty proceedings under section 271(1) . He issued a show cause notice on 28.12.2011 which was served on the assessee but since he did not comply with the notices in the assessment proceedings, he did not comply with the notices in the penal proceedings also. The ld. AO has imposed a penalty of ₹ 24,50,449/- in an ex parte order passed on 12th June, 2012. Against this order, assessee has filed an appeal on 16th August, 2012 i.e. along with the quantum appeal. This appeal was stated to be time barred by 32 days. The assessee filed an application for condonation of delay along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient reasons for not presenting the appeal or he has made a deliberate attempt of not properly handling the income-tax proceedings. At this stage, we would like to refer the assessment proceeding also. It is pertinent to note that where no books of accounts are available there sub-section (3) of section 145 contemplates that AO will pass assessment order in the manner provided in section 144 of the IT Act. This section reads as under :- Section 144 144. Best judgment assessment (1) 1 ] If any person- (a) fails to make the return required 2 under sub- section (1) of section 139] and has not made a return or a revised return under subsection (4) or sub- section (5) of that section,] or (b) fails to comply with all the terms of a notice issued under subsection (1) of section 142 3 or fails to comply with a direction issued under sub- section (2A) of that section], or (c) having made a return, fails to comply with all the terms of a notice issued under sub- section (2) of section 143, the 4 Assessing] Officer, after taking into account all relevant material which the 5 Assessing] Officer has gathered, 6 shall, after giving the assessee an opportunity of being hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence authorize the AO to treat the gross receipts as income of the assessee ? This action of the AO has been upheld by the CIT(A) who appreciated the alleged conduct of the assessee of not appearing before the AO. The quasi judicial authorities are being respected not on account of their power to legalise the injustice on technical ground but because, they are capable of removing injustice and is expected to do so. The contention of the assessee is that he being a lay man has handed over the papers to tax consultant who did not file appeals in time. This belief is to be tested on consequential result i.e. by making the appeal time barred what the assessee will achieve. He cannot adopt a dilatory tactics by filing the appeal late because that will ultimately harm him. Therefore, looking to the facts and circumstances and the punishment in the shape of tax liability of ₹ 48,86,903/- including interest as well as penalty of more than ₹ 24 lacs, we are of the view that the punishment is disproportionate to the ultimate negligence of the assessee. Therefore, we condone the delay in filing the appeals before the CIT(A). 11. On merit CIT(A) has not adjudicated the issues, p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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