KALABEN PRAMOD SHAH,MUMBAI vs. ITO-27(2)(1), VASHI

O R D E R

PER ABY T. VARKEY, JM:

2. The main grievance of the assessee is against the action of the Ld. CIT(A) confirming the action of the AO passed u/s 144 r.w.s 147 of the Income Tax Act, 1961 (hereinafter “the Act’) wherein the AO has added the entire purchase and sale consideration on of Rs.26,52,250/- as income and ignored the contention the profit from the transaction should be taxed. 3. Regarding the cause of delay in filing of appeal, the Ld. AR for assessee, brought to my notice that assessee is an individual who is more than 75 years old lady and her husband was looking after the commodity business and filing of return of income etc. However, during the re-assessment proceedings, her husband had by-pass 2 A.Y. 2011-12 Kalaben Pramod Shah surgery in 2015 and because of medical complexities he was bedridden and thereafter he ultimately passed away in July, 2020. And it was brought to my notice that re-assessment order was framed by AO after reopening the assessment on 20.03.2015 while assessee’s husband was undergoing treatment in hospital and was discharged only 1 ½ months i.e. 30.01.2015 before the date of re-assessment order, which fact is evident from the copy of discharge summary issued by Fortis Hospital placed before this Tribunal. It is noted that assessee is an old lady and the commodity business as well as return of income of assessee was taken care by her husband who had Cardiac problems, which led to by- pass surgery and hospitalisation and discharge only fifty (50) days before the re-assessment was framed u/s 144 of the Act [i.e. best judgment assessment for non-participation of assessee during re- assessment proceedings]. And further it has been brought to my notice that due to medical/cardiac problems, the assessee’s husband health deteriorated and needed constant medical attention which prevented him from pursuing the appeal filed by the assessee before the Ld. CIT(A), which prompted the Ld. CIT(A) to dismiss the appeal of the assessee on 19.12.2022 since the assessee failed to produce any evidences before him. Taking into consideration the aforesaid facts and circumstances of the case, and that the assessee is an old lady and her husband had passed away during the midst of Covid-19 (July, 2020) due to the lock-down etc, the assessee could not approach the Ld. AR, which led to the dismissal of the appeal. Taking into consideration, aforesaid facts, we find that there was reasonable cause 3 A.Y. 2011-12 Kalaben Pramod Shah for not appearing before the AO as well as Ld. CIT(A). Therefore, by relying on the decision of the Hon’ble Supreme Court in Tin Box Company Vs. CIT (249 ITR 216) (SC) wherein it was held that if an assessee did not get proper opportunity before the AO, then the assessment should be restored back to the file of AO for assessing the income of assessee. The order of Hon’ble Supreme Court reads as under: - “ It is unnecessary to go into great detail in these matters for there is a statement in the order of the Tribunal, the fact-finding authority, that reads thus : "We will straightway agree with the assessee's submission that the ITO had not given to the assessee proper opportunity of being heard." That the assessee could have placed evidence before the first appellate authority or before the Tribunal is really of no consequence for it is the assessment order that counts. That order must be made after the assessee has been given a reasonable opportunity of setting out his case. We, therefore, do not agree with the Tribunal and the High Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard.