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Income Tax Appellate Tribunal, JODHPUR BENCH, JODHPUR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
ex-parte order passed by the ld. Assessing Officer u/s 144 of the Act. The counsel submitted that CA who filed the appeal before the ld. CIT(A) online while filing the appeal he has mentioned his own mobile number and email address in the appeal column due to which the appellant assessee and the changed counsel did not get any message regarding fixing of hearing by the ld. CIT(A) vide notice mentioned in the impugned order. Accordingly, the appeals were rejected ex-parte qua the assessee by the ld. CIT(A). He further submitted that the appellant assessee also could not furnish the requisite information before the ld. AO who had passed the ex-parte order u/s 144 of the Income Tax Act, 1961. The counsel has made a humble request that opportunities may be granted to the appellant assessee to enable him to produce requisite evidences before the ld. AO to explain the queries raised in the notices. The ld. AR submitted that he wishes to file the relevant documentary evidence which is necessary to decide and adjudicate the issue on merits of the case, (APB pg. 1-32). Accordingly, he requested that the matter may be remanded back to the file of the AO to pass denovo assessment after granting adequate opportunity of being in the fresh assessment proceedings before the ld. Assessing Officer.
Per contra, the ld. DR has no objection to the request of the assessee in view of the principles of natural justice.
We have heard the rival contention, perused the material on record and the written submission filed before us. Admittedly, the appellant assessee has claimed the deduction u/s 54F of the Act which has been rejected by the AO and the ld. CIT(A) by passing the order ex-parte qua the assessee. The ld. counsel for the appellant has contended that the appellant could not submit any evidences, because he was under bonafide belief, that his advocate must have complied but who did not comply with the notices which resulted in passing ex-parte orders by both ITO and CIT(A). In support, he filed an affidavit on record.
The ld. AR has argued that there was no capital gain arising out of the sale of plot of the appellant assessee and hence no addition is called for, and therefore, there should be no addition and consequential penalty of concealment in the appellant’s case. He has filed a paper book containing documentary evidences such as copy of sale deed of plot grain merchant payment made by buying for plot booked and amount paid, house registry computation of income. In our view, the documents filed by the appellant are vital documentary evidences to substantiate the claim of the appellant and, therefore, admitted on record under Rule 29 of the ITAT Rules. We are of the considered view, that this is a fit case to be remanded back to the file of the AO to pass donovo assessment order after considering the additional evidence filed by the assessee on record and granting adequate opportunity of being heard. Accordingly, we remand back the matter to the file of the AO.
Consequential penalty is also required to the AO who shall be at liberty to initiate and par the penalty order afresh if so required on passing the denovo assessment order.
In the result, both the appeals filed by the assessee are allowed for statistical purposes.
Order pronounced in the open court on 07.12.2023