TaxTMI 
TaxTMI 
2023 (11) TMI 791
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....as not appreciated the facts of the case and merely relied on order of the AO and without any rhyme & reason, the Ld. CIT(A) has confirmed the penalty order passed by the AO u/s. 271 AAA of the Income Tax Act. As such order of the CIT(A) is liable to cancelled. 3. That the appeal has been rejected on the ground that the appellant has not filed an application for condonation of delay in filing the belated appeal. 4. That the worthy CIT(A) should have allowed an opportunity of being heard to the assessee for filing the belated appeal. The Learned Chandigarh Bench has taken this view that the CIT(A) must allow an opportunity of being heard to the assessee in filing the belated appeal. This view was followed in the case of Kama! Deen Sheikh vs. ACIT in ITA No.l003/CHD/2016, order dated 26/10/2016 relating to AY 2007-08. A copy of the judgment is made part and parcel of the grounds of appeal. As such the order passed by the Ld. CIT(A) is bad in law and the same is liable to be cancelled. 5. That it was pointed out by the assessee and by the Counsel for the assessee on phone also to the worthy CIT(A) that Sh. P.N. Arora, Advocate has undergone heart surgery and....
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.... order. So, accordingly ld. AO proceed to levy the penalty u/s 271AAA and the notice was issued accordingly. The notice was remained un-compiled before the ld. AO. The ld. AO levied penalty u/s 271AAA on amount of undisclosed income amount to Rs. 3,54,51,237/- @ 10 % penalty which comes to Rs. 35,45,120/-. Aggrieved assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) upheld the order of the ld.AO. Being aggrieved assessee filed an appeal before us. 4. The ld.AR filed written submissions which are kept in the record. The ld. AR first argued that the assessee had already paid the tax but not within the stipulated period as directed u/s 245D(4) of the Act but within the time frame before the filing of appeal to the ITAT. The list of payment is duly annexed in APB page 37 which is inserted as below: S. No. Particulars Date Amount Challan No. 1 Payment of Tax for AY 2009-10 03-03-22 31,50,000 19332 2 Payment of Tax for AY 2009-10 12-08-21 173,561 00003 3 Payment of Tax for AY 2009-10 20-01-20 95,000 05397 4 Payment of Tax for AY 2009-10 17-01-20 1,100,000 05179 5 Payment of Tax for AY 2009-10 ....
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....s if such immunity had not been granted." 3. In case the payments are not made within the time granted by the Settlement Commissioner or in case the person fails to comply with any other conditions, subject to which the immunity was granted, the immunity shall stand withdrawn. In the case of the appellant, it is not in dispute that the payments have not been made within the time originally granted by the Settlement Commissioner. But at the same time, it is not in dispute that all payments have been made before the appellant approached this Court and filed this appeal by way of special leave petition on 20.01.2016, though the time originally granted by the Settlement Commissioner was only up to 31.07.2015. 4. However, we find from the provision that the Settlement Commissioner is free to grant further time for payment, under Section 245H(1A) of the said Act. 5. Having heard the learned senior counsel for the appellant and learned Additional Solicitor General appearing for the respondents, we are of the view that in the facts and circumstances of this case, it is not necessary to relegate the appellant to the Settlement Commissioner for enlargement of time,....
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....tlement Commission vide its order dated 28.05.2013 passed under Section 245D(4) give direction regarding the payment of tax and interest as under: "28. In the light of his request it is decided that the amount of tax and interest will be payable in six equal instalments by 15^th of every alternate month starting with 15^th June, 2013." As per AO, the assessee failed to pay the tax/interest and therefore notice for imposition of penalty was issued on 24.12.2014. As per the penalty order, no reply was filed before the AO even after reminder issued on 12.01.2015. The AO levied penalty holding that the immunity granted to the assessee got waived as per the provisions of Section 245H(IA). For clarity the provisions of the Section are reproduced below: "245H(1A) An immunity granted to a person under sub-section (I) shall stand withdrawn if such person fails to pay any sum specified in the order of settlement passed under sub-section (4) of section 245D within the time specified in such order or within such further time as may be allowed by the Settlement Commission, or fails to comply with any other condition subject to which the immunity was granted and thereu....