TMI Blog2019 (8) TMI 1435X X X X Extracts X X X X X X X X Extracts X X X X ..... AO is void ab initio and allow the appeal of the assessee. - I.T.A. No.50/Coch/2019 - - - Dated:- 1-8-2019 - S/Shri Chandra Poojari, AM And George George K., JM Assessee by Shri T. John George, Adv. Revenue by Smt. A.S. Bindhu, Sr. DR ORDER Chandra Poojari, This appeal filed by the assessee is directed against the order of the CIT(A), Kottayam dated 25/06/2018 and pertain to the assessment year 1995-96. 2. The assessee has raised the following grounds of appeal: 1. The learned Commissioner of Income tax (Appeals), Kottayam erred in confirming the penalty levied under section 271(1)(c) of the IT Act, 1961 by the Income tax Officer, Ward-4, Kottayam. He ought to have found that since the Appellate order has been passed without giving an effective opportunity of being heard to the Appellant since there was denial of natural justice, the disposal of the Appeal itself was invalid. 2. It is submitted that at the time of filing the Appeal the Appellant was living in Kanjirappally, but by the end of the year 2008 due to circumstances beyond the control of the Appellant he had to shift his resid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by which the payment as per the agreement were made, they could have found out the actual purchaser, the Department did not attempt for this and as a result the entire payment was attributed to the Appellant and made assessment on the Appellant. (iii) all along the Department compelled the Appellant to prove that he has not made the payment; in other words the Department wanted the Appellant to prove what he did not do as it was not possible or practicable for a person to prove that he has not actually made any payment, whereas, for a person who has actually made the payment it was easy for him to prove such payment. (iv) it may be observed that the Assessing Officer who was only an Income tax Officer to make an assessment towards the alleged unexplained investment in purchase of a property, because the assessment for a subsequent Asst. Year (i.e., for the Asst. Year 1996-97) was made by a Joint Commissioner of Income tax, who is a superior Officer than the Assessing Officer in which an addition of a similar nature was made and the ITO was bound to follow the decision of his superior Officer in the earlier assessment also, as the same was completed by the ITO af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeals as follows: The Petitioner has filed an appeal before this Hon'ble Bench against the order of the learned Commissioner of Income tax (Appeals), Kottayam confirming the penalty under section 271(1)(c) of the IT Act for the Asst. Year 1995-96 and this Appeal is numbered as ITA No. 50/Coch/ 2019 and the Appeal is coming up for hearing before the bench on 30-07-2019. 2. When the Appeal came up for hearing on 6-6-2019, the Hon'ble Bench directed the Appellant to produce a copy of the penalty notice received by the Appellant for the Asst. Year under appeal. As mentioned in the Affidavit filed by the Appellant on 30-05-2019, since the Appellant had to leave his hometown Kanjirappally to a rented house at Kochi in a hurry in the year 2009 some of the papers and documents relating to his business including those relating to Income tax matters also were misplaced and hence he could not immediately trace out the penalty notice directed to be produced by the Hon'ble Bench. Therefore the Petitioner tried to obtain a copy of the same from the Assessing Officer (Income tax Officer, Ward -4, Kottayam). But the Officer expressed his inability to furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the discretion to allow or not to allow additional ground to be raised for the first time before the Tribunal. Accordingly, we admit the additional ground for adjudication. 4. Coming to the merits of the additional ground, the Ld. AR drew our attention to the notice issued for imposing penalty u/s. 274 of the Act which reads as follows: NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF THE INCOME-TAX ACT, 1961 Income Tax Officer, Kottayam Ward-2 To Shri M.R. Somarajan, Amba Rubber Industries, Thampalakadu, Kanjirapally Dated the 22/03/2002 1. Whereas in the course of proceedings before me for the assessment year 1995-96 it appears to me that you;- Have without reasonable cause failed to furnish me return of income which you were required to furnish by a notice given under section 22(1)/22(2)/34 of the Indian Income Tax Act, 1922 or which you were required to furnish under section 139(1) or by a notice given under section 139(2)/148 of the Income Tax Act, 1961 No dated .or have without reasonable cause failed to furnish it within the time allowed and the manner r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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