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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: SHRI ABY T. VARKEY, JM & SHRI OM PRAKASH KANT, AM
O R D E R
PER ABY T. VARKEY, JM:
This is an appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi dated 22.09.2022 for assessment year 2013-14.
The main grievance of the assessee is against the action of the Ld. CIT/NFAC in passing the impugned order ex-parte on the ground that the assessee has not filed any submission pertaining to the grounds of appeal raised by the assessee before him. However, it was pointed out by the Ld. AR that the assessment order was passed by the AO dated 18.07.2016 u/s 144 of the Income Tax Act, 1961 (hereinafter “the Act”) and against the same, the assessee had preferred an appeal before the Ld. CIT(A)-52, Mumbai wherein the assessee had filed written submission vide letter dated 08.12.2017 a copy of which is found placed at page no. 10 to 25 of PB, which we note have endorsement of the office of the Ld. CIT(A) dated 09.01.2018. The Ld.
Sunil Pandurang Mantri AR also drew our attention to page no. 26 to 27 wherein the assessee has filed an application for admission of additional evidence, wherein also the endorsement of the office of the Ld. CIT(A) dated 09.01.2018 is found therein. Further the Ld. AR also drew our attention to the remand report given by the AO vide letter dated 21.02.2018 which is found placed at page no. 28 to 40 of PB which has been submitted by AO to the Ld. CIT(A)-52, Mumbai. The Ld. AR also drew our attention to rebuttal made by the assessee to remand report filed by the AO dated 11.04.2018 which is found placed at page no. 41 to 56 of PB. Thus, according to the Ld. AR from the aforesaid events which took place before the Ld. CIT(A)-52, Mumbai in the appeal preferred by it against the assessment order dated 18.03.2016, it cannot be said that assessee didn’t file its written submission on the grounds of appeal before the Ld. CIT(A).
3. However, the Ld. AR, fairly brought to our notice that later, the appeal of assessee was transferred from Ld. CIT(A)-52 to NFAC; and even through the assessee sought adjournment on 25.05.2021, NFAC ignored it and has passed the impugned order 22.09.2022. And we note that NFAC had been given twice opportunity to assessee to file submissions vide notice dated 06.01.2021 and 25.08.2021 before passing the impugned order.
4. We note that the Ld. CIT(A)/NFAC has passed the impugned order without going into the merits of the case by stating that the assessee has not filed any submission/filed any documentary evidences to support the grounds of appeal raised by the him. However, on the contrary, we note that the assessee had in fact filed submissions and Sunil Pandurang Mantri also application for admission of additional evidences as noted (supra). And since the appeal got transferred to the Ld. NFAC, we presume that along with the appeal records, the written submission/remand report etc.(supra) ought to have been transferred to the NFAC, but from the reason given by NFAC, it can be presumed that written submission etc filed by assessee before Ld CIT(A)-52 has not been transferred. Therefore, the impugned action of the NFAC to have decided ex-parte, the grounds of appeal of the assessee on the specious plea that the assessee has not filed any documentary evidence/submissions to support its ground, cannot be accepted. Therefore, we are inclined to set aside the impugned order of the NFAC and set aside the matter back to the file of the NFAC with a direction to call for the documentary evidences/written submission filed by assessee before Ld. CIT(A)
52. Mumbai as discussed (supra) or the assessee be directed to file/up-load a copy of the same. And the Ld. CIT(A) to decide the appeal in accordance to law, after hearing the assessee in terms of section 250(6) of the Act.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on this 10/04/2023.