TMI Blog2020 (12) TMI 465X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has not appeared before the AO and allowed the impugned order to be passed under section u/s 272A(2)(k) of the Income Tax Act and thereafter the appeals of the assessee were also dismissed by the CIT(A) ex parte, then this ground raised by the assessee at this stage raises the question whether without bringing this fact on record during the penalty proceedings, the issue raised by the assessee can be conclusively decided at this stage. Accordingly, in the facts and circumstances of the case and in the interest of justice these appeals are set aside to the record of the Assessing Officer to verify all the facts as alleged by the assessee in the additional ground and then pass a fresh order under u/s 272A(2)(k) of the Act. Needless to say the assessee be given an appropriate opportunity of hearing. All the appeals are allowed for statistical purposes. - ITA Nos. 379 to 383/ALLD/2018 - - - Dated:- 10-12-2020 - Shri Vijay Pal Rao, Judicial Member For the Appellant : Shri. Abhinav Mehrotra, Adv For the Respondent : Shri A. K. Singh,Sr. DR ORDER PER SHRI VIJAY PAL RAO, JUDICIAL MEMBER: These five appeals by the assessee are directed against f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es issued by the AO and the CIT(A). Thus the delay in filing these appeals is nothing but due to casual approach and negligence of the assessee. 5. I have considered the rival contentions as well as relevant material on record. The assessee has explained the delay of 271 days in filing these appeals due to the reasons that after receiving the impugned order on 17th January, 2018, the premises of the assessee were taken over by the education board for conducting the board examination scheduled to be held in the month of February, 2018. The assessee has narrated all these reasons and facts in the affidavit filed alongwith the application for condonation of delay. The facts as explained by the assessee in the affidavit are not in dispute so far as the receipt of the impugned order and conducting of board examination by the board and consequently the office record of the assessee was shifted out and stored at a new location to facilitate smooth and uninterrupted conduct of the board examination by the authorities. It is also not in dispute that during the month of May June, the college remained in recess on account of summer vacations and the administrative staff was not attend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law as the same has been made without providing the assesse with a due and proper opportunity of hearing and therefore the impugned order deserves to be set-aside being bad in law and it is a case of first and only default. BECAUSE, on the facts and in the circumstances of the case the impugned order passed by the Ld. CIT (A), dismissing the appeal of the assessee and upholding Assessing Office s Order is bad in law since the explanation submitted by the assessee demonstrating its bonafides has not been considered or addressed. BECAUSE, on the facts and in the circumstances of the case the treatment of assessee in default without considering the explanations furnished and difficulty faced by him and without application of mind on the submissions made by the assessee rendered the order bad in law and liable to be quashed. Because, on the facts and in the circumstances of the case, the impugned order passed by the Ld. CIT(A), dismissing the appeal of the assessee and upholding the order u/s 272A(2)(k)/274 levying penalty for ₹ 1,57,170/- is both bad in law as well as on facts and is liable to be quashed since the person against whom the said order has bee made is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity to present his case before the authorities below. 10. On the other hand, learned DR has submitted that the assessee is a habitual defaulter for not appearing before the authorities below despite the sufficient opportunities were granted. He has further contended that the assessee has never raised any objection regarding the validity of the penalty proceedings on the ground of responsible person is the Manager and not the Principal of the college. Thus, the assessee cannot be allowed to raise such an objection at this stage. He has further contended that in response to the show cause notice the Principal of the college has replied and therefore he has not questioned of fact that he is the responsible person for payment and deduction of TDS. 11. The learned DR has further submitted that this fact can otherwise be verified from the TDS return filed by the assessee in the subsequent years. He has also referred to the memorandum of association and submitted that the Principal was the responsible officer for day to day affairs of the college. The Manager may be acted under the delegated powers of the Principal of the college. He has relied upon the orders of the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities below therefore, the relevant record on this aspect is required to be properly verified. 13. Further, the assessee has also sought to produce the additional evidence to show that the Manager of the college is the responsible officer under section 204 of the Income Tax Act. It is pertinent to note that when the assessee has not appeared before the AO and allowed the impugned order to be passed under section u/s 272A(2)(k) of the Income Tax Act and thereafter the appeals of the assessee were also dismissed by the CIT(A) ex parte, then this ground raised by the assessee at this stage raises the question whether without bringing this fact on record during the penalty proceedings, the issue raised by the assessee can be conclusively decided at this stage. Accordingly, in the facts and circumstances of the case and in the interest of justice these appeals are set aside to the record of the Assessing Officer to verify all the facts as alleged by the assessee in the additional ground and then pass a fresh order under u/s 272A(2)(k) of the Act. Needless to say the assessee be given an appropriate opportunity of hearing. All the appeals are 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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