2023 (3) TMI 815

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....ferred to as 'the Act') dated 26.11.2019. The assessee has raised the following grounds of appeal:- "1. On the facts of the case as well as law on the subject, the learned Commissioner of Income-Tax (Appeals), NFAC has erred in confirming the action of assessing officer in imposing penalty of Rs.1,54,500/- u/s 270A of the I.T.Act, 1961. 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-Tax(Appeals), NFAC has erred in passing ex-parte order although assessee sought adjournment upto 12/01/2023. 3. It is therefore prayed that penalty imposed by assessing officer and confirmed by Commissioner of Income-tax (Appeals) may please be deleted. 4. The Ap....

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....y the assessee by way of tax duty of cess, whatever name called shall be allowed in which year such amount is actually paid provided such sum is paid actually paid or before due date applicable under section 139(1). On the basis of such observation, the Assessing Officer disallowed and added back to the income of assessee and initiated penalty of misreporting as per section 270A(2) of the Act. 3. The assessing officer issued show cause notice under section 274 read with section 270A dated 19.05.2021 to offer explanation as to why penalty should not be imposed. The assessee filed its reply dated 08.08.2021. In the reply, the assessee stated that no penalty for under-reporting or misreporting of income should be levied because the disallow....

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....mits that before NFAC/Ld. CIT(A) the assessee sought adjournment and requested the case may be adjourn till 12.01.2023, however, the appeal of assessee was dismissed on 05.01.2023 without considering the request of assessee for adjournment. The Ld.AR for the assessee submits that in the assessment, disallowance of Rs.2.50 lakh was made on account of fact that VAT was paid after due date of filing of return under section 139(1) of the Act. In response to show cause against levy of penalty, the assessee filed its reply through ITBA portal on 05.01.2021, which was not considered by assessing officer. The assessing officer imposed penalty under section 270A(2) @ 200% of tax payable for alleged under-reporting income in consequence of misreporti....

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....CTR 0374 (Del),(2022) 443 ITR 0186 (Del). 8. On the other hand, Ld. Senior Departmental Representative (Ld. Sr-DR) for the Revenue submits that assessee has not furnished such exhausted explanation either before Assessing Officer or NFAC/Ld. CIT(A), therefore the matter may be restored back to the file of NFAC/Ld. CIT(A) for considering all the submission and to pass order afresh. 9. I have considered the rival submissions of both the parties and have gone through the orders of lower authorities carefully. I have also deliberated on the case law cited by Ld. AR for the assessee. It is a matter of fact that during the assessment, the Assessing Officer made addition of Rs.2.50 lakhs being VAT amount paid after due date of filing return.....