TMI Blog2018 (1) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer is not valid and consequently, the order passed u/s 271(1)(c) is also not valid. - Decided in favour of assessee - ITA Nos. 76 /Hyd/2016, 1155/Hyd/2014 And ITA No. 1156/Hyd/2014 - - - Dated:- 12-1-2018 - SMT P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER For The Assessee : Shri A.V. Raghuram For The Revenue : Shri J. Siri Kumar ORDER PER S. RIFAUR RAHMAN, A.M.: Assessee preferred an appeal against the order of ld. CIT(A) 5, Hyderabad, dated 30/10/2015 relating to assessment u/s 143(3) and cross appeals are filed by the assessee and revenue against the order of ld. CIT(A) II, Hyderabad, dtd. 21/03/2014, relating to penalty u/s 271(1)(c) of the Act, for the AY 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case are that the assessee is in the business of construction of irrigation projects, canals, roads and related work. The works are taken on contract and also on subcontract basis. A survey operation u/s 133A was conducted in the business premises of the assessee on 25/03/2010. The assessment was completed u/s 143(3) on 30/12/2011 determining the taxable income at ₹ 20,77,51,740/- against the returned income of ₹ 14,75,55,600/- by making various additions. 4. Aggrieved by the order of AO, the assessee preferred an appeal before the CIT(A), filed the appeal before the CIT(A) with a delay of 653 days, as the assessee ought to have filed the appeal on or before 31/01/2012, but the same was filed on 21/10/2013, resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are of the view that though it is important as to why the assessee took time to file the appeal belatedly with a delay of 653 days before the authorities, but, it is relevant that by adopting technical reasons, one should not be deprived off its legal right of appeal. Moreover, ld. CIT(A) has applied his energy to justify how the assessee cannot file the appeal, rather than, extending helping hand in rendering proper justice. In our considered view, assessee should be given another opportunity to put forth its case considering the fact that in the earlier AY, it has a favourable case before the CIT(A) and ITAT. Therefore, we remit this case back to the file of CIT(A) to adjudicate the issue in hand on merits by giving proper opportunity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved the assessee is in appeal before us raising the following grounds of appeal: 1 .The learned Commissioner of Income Tax-(Appeals)-II, erred in confirming Penalty U/s.271(1)(c) of the Income Tax Act, 1961, in respect of disallowance of Unexplained credits amounting to ₹ 1,31,50,000/- based on the facts and circumstances of the case. 2.The learned Commissioner of Income Tax-(Appeals)-II ought to have made a speaking order regarding the confirmation of penalty u/s.271(1)(c) of the Income Tax Act, 1961, in respect of the disallowance of ₹ 1,31,50,000/-. 3.The learned Commissioner of Income Tax-(Appeals)-II, erred in confirming Penalty U/s.271 (1)(c) regarding disallowance of cash payments u/s 40A(3) amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the notice is not validly issued. Consequently, the order passed u/s 271(1)(c) also is not valid. For this proposition, he relied on the decision of the Hon ble Supreme Court in the case of CIT Vs. SSA s Emerald Meadows, [2016] 73 taxmann.com 248 (SC). 14. The Learned Departmental Representative on the other hand relied on the orders of revenue authorities. 15. Considered the rival submissions and perused the material facts on record. The issue in dispute is squarely covered by the decision of the Hon ble Supreme Court in the case of CIT Vs. SSA s Emerald Meadows, [2016] 73 Taxmann.com 248 (SC) wherein the Apex Court upheld the decision of the Hon ble High Court, in which, the Hon ble High Court confirmed the order of the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the penalty relating to addition made towards disallowance of sundry creditors amounting to ₹ 2,43,36,140/- and disallowance of unexplained expenditure of ₹ 3,25,000/-. 3. The ld. CIT(A) ought to have confirmed the levy of penalty as the addition was accepted by the assessee. 17. Considered the rival submissions and perused the material facts on record. As we have quashed the penalty order on the ground that the notice issued by the AO u/s 274 r.w.s. 271 of the IT Act, 1961, dated 30/12/2011 is not valid, the grounds raised by the revenue becomes infructuous and therefore, the appeal of the revenue is dismissed as infructuous. 18. In the result, appeal in ITA No. 76/Hyd/2016 is allowed for statistical purposes, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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