TMI Blog2016 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... sent in 271D proceedings is not sustainable. When the assessee had the assessment records for representing in the proceedings under section 271D, it cannot be said that it was prevented by sufficient cause to file appeal against the order under section 143(3) read with section 147 of the Act or in appeal against the penalty proceedings under section 271(1)(c) due to misplacement of file is not maintainable at least till the proceedings under section 271D got concluded. The assessee did not represent before the A.O. during the penalty proceedings under section 271(1)(c) and has filed the appeal against the same also with delay. The assessee, has therefore, not been vigilant in challenging the re-assessment proceedings as well as the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee towards license-fee for the period of 2010-2011 and subsequent purchases from the APBCL (IMFL). It was found that the amount paid by the assessee as per the information furnished by the ACB are not supported by sufficient source of the assessee as reflected in the returns of income filed for A.Y. 2011-2012. Thereafter, after recording the reasons as required under section 147 of the Act, notice under section 148 was issued and served on the assessee. Assessee appeared along with his Representative and filed necessary information as called for. 3. During the course of re-assessment proceedings, A.O. noticed that the net profit percentage as admitted by the assessee is only 0.67% against the turnover achieved at ₹ 4,55,68,739, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee accepted the proposal and produced the working of income to be taxed. 3.1. Thereafter, the A.O. further observed that the assessee has obtained license from Prohibition Excise Superintendent, Saroornagar, Rangareddy District for the sale of IMFL for the period from 01.07.2010 to 30.06.2012. On query, assessee furnished details of initial payment of license fee and the explanation for sources thereof. After considering the assessee s contentions with respect to source of investment, A.O. held that assessee could explain sources only for ₹ 23,89,334 out of the expenditure incurred of ₹ 38,16,700 and thereby, the balance amount of ₹ 14,27,366 remains unexplained. In view of same, assessee agreed for this addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same was traced out only in the last week of October, 2014. Taking support of this affidavit, assessee stated that delay in filing the appeal is neither willful nor wanton but due to afore-cited reasons and prayed for condonation of delay of 217 days in filing appeal against the assessment order; 81 days in filing of appeal against the penalty order passed under section 271(1)(c); and 29 days in filing of appeal against the penalty order under section 271D of the I.T. Act, 1961. The Ld. CIT(A), however, refused to condone the delay and consequently, refused to admit the appeals and dismissed the same. Aggrieved, assessee is in appeal before us. 4. The Ld. Counsel for the assessee reiterated the submissions made before the Ld. CIT(A) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. CIT(A) ought to have condoned the delay and considered assessee s appeals on merit. This argument of the assessee has been countered by the Ld. D.R. stating that the appeals have been filed by the assessee as an afterthought and therefore, the contention cannot be accepted. 6. We find that assessee having agreed for the additions made by the A.O. may have decided not to file an appeal against the original assessment order but has decided to file appeal only on receipt of penalty order under section 271(1)(c) of the I.T. Act. This appeal also has been filed with delay. Therefore, it cannot be said that non-filing of the appeal is only due to misplacement of the record but it may also be due to additions agreed to by the assessee. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature. 16. In view of above, no interference is required with impugned judgment and order of the High Court. The appeals lack merit and are, accordingly, dismissed. 7. Thus, the assessee has claimed that the delay is due to misplacement of his file. Because the assessee appeared before the A.O. and filed detailed representation during 271D proceedings, CIT(A) disbelieved this contention while it is the contention of the assessee that for filing of submission in 271D proceedings, the assessment records was not necessary. We find that penalty under section 271D is leviable for co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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