SEJAL NIRMAM KOTHARI,MUMBAI vs. INCOME TAX OFFICER, WARD 19(3)(3), MUMBAI

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ITA 2982/MUM/2022Status: DisposedITAT Mumbai19 January 2023AY 2017-20185 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal found that both the AO and CIT(A) passed orders ex-parte due to the assessee's non-appearance. To ensure natural justice and allow the assessee to explain the cash deposit, the Tribunal set aside the CIT(A)'s order and remitted the case back to the AO for fresh adjudication.

What were the facts?

The assessee deposited Rs. 20,00,000/- in cash during demonetisation but failed to provide details of its source. The Assessing Officer added this amount as unexplained income, and the CIT(A) upheld the addition. The assessee appealed to the ITAT, citing non-receipt of notices and violation of natural justice.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal ex-parte without granting sufficient opportunity of being heard, and whether the case should be remanded for fresh adjudication to ensure principles of natural justice are followed.

Which sections of the Income-tax Act were involved?

Section 69A,Section 115BBE,Section 143(3),Section 234B,Section 234C

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI

Before: SHRI KULDIP SINGH & SHRI S. RIFAUR RAHMAN

For Appellant: Shri Dharan Gandhi, A.R
For Respondent: Shri Saurabh Kumar Rai, D.R

Per : Kuldip Singh, Judicial Member:

1.

The appellant, Mr. Sejal Nirman Kothari (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 12.11.2022 passed by the National Faceless Appeal Centre(NFAC) [Commissioner of Income Tax (Appeals), Delhi] (hereinafter referred to as CIT(A)] qua the assessment year 2017-18 on the grounds inter-alia that :- “1. The Ld. Commissioner of Income-tax (Appeal), NFAC, erred in upholding the action of Ld. Assessing Officer in adding INR 20,00,000/- being cash deposit in the bank account and taxing the same u/s 115BBE of the Act at the rate of 60%. 2 Mr. Sejal Nirman Kothari

2.

The Ld. Commissioner of Income-tax (Appeal), NFAC, erred in passing an ex-parte order without considering the adjournment request filed by the assessee.

3.

The Ld. Commissioner of Income-tax (Appeal), NFAC, erred in not granting sufficient opportunity of being heard and thereby violating principles of natural justice. 4. The Ld. Commissioner of Income-tax (Appeal), NFAC, erred in not disposing the appeal on merits of the case. 5. The assessment order passed u/s 143(3) of the Act dated 23.12.2019 is bad in law. 6. The assessment order passed u/s 143(3) of the Act dated 23.12.2019 is time barred. 7. The Ld. AO erred in charging interest u/s 234B & 234C of the Act. 8. The grounds of appeal

raised are independent and without prejudice to each other.

9. The Appellant craves leave to add, to amend, alter/delete and/or modify the above grounds of appeal on or before the final hearing.”

2. Briefly stated facts necessary for consideration and adjudication of the issues at hand are : assessee's return of income filed for the year under consideration was subjected to scrutiny. Assessing Officer (AO) noticed that the assessee has deposited cash amounting to Rs.20,00,000/- during the demonetisation period but failed to file any documentary evidence and details regarding the nature and source of such cash deposit and thereby made addition thereof on account of unexplained money under section 69A read with section 115BBE of the Income Tax Act, 1961 (for short 'the Act'.)

3. The assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has confirmed the addition. Feeling aggrieved with the impugned order passed by the Ld. CIT(A) the 3 Mr. Sejal Nirman Kothari assessee has come up before the Tribunal by way of filing present appeal.

4.

We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto.

5.

The Ld. CIT(A) dismissed the appeal filed by the assessee on account of non prosecution by returning following findings: “4.7 I have perused the impugned assessment order u/s 143(3) dated 23.12.2019 The appellant has not furnished any submissions in support of the ground of appeal

during the appellate proceedings apart from the statement of facts furnished along with Form

35. The appellant admits that she has received all the notices, letters and orders issued by the assessing officer online. All notices were issued electronically since the assessment was being done on the ITBA Portal and Faceless Assessment had started. It is quite a brazen attempt to not comply with any of the notices issued by the assessing officer and then to claim that none of the letters or notices issued prior to completion of assessment order were not received. During appeal proceedings too, appellant despite receiving several notices which gave her sufficient opportunity of being heard, did not avail any of the opportunities of being heard. Thus, there is a consistent attitude of non-compliance and adopting dilatory tactics by the appellant during assessment proceedings as well as appeal proceedings. Taking into account the entire conspectus of this case, I see no reason to interfere with the findings of the assessing officer in assessment order u/s 143(3). Therefore, the assessment order us 143(3) made by assessing officer is sustained on the reasons given in the assessment order Accordingly, all grounds of appeal are dismissed.”

6. Undisputedly assessment order passed by the AO as well as impugned order passed by the Ld. CIT(A) have been passed ex-parte due to non appearance of the assessee.

7. Bare perusal of para 4.6 of the Ld. CIT(A) goes to prove that numerous notices were given to the assessee but she failed to 4 Mr. Sejal Nirman Kothari appear before the Ld. CIT(A) to explain the huge cash deposit of Rs.20,00,000/- in the banks. No doubt when numerous notices were given to the assessee she was required to appear before the AO.

8.

The Ld. AR for the assessee submitted that the assessee has not received any notice. Even if the assessee is assumed to have been served the Ld. CIT(A) was required to dispose of the appeal on merits but he has merely dismissed the appeal for want of non appearance of the assessee. Now the Ld. A.R. for the assessee given undertaking that she will appear before the Revenue Authorities on each and every date of hearing in order to explain the cash deposit in her bank account. To impart the justice and to decide the issue once for all and in order to comply with the principle of natural justice adequate opportunity of being heard is required to be given to the assessee. So impugned order passed by the Ld. CIT(A) is hereby set aside and since the facts are required to be thrashed/verified by the AO first, the case is remitted back to the AO to decide afresh after providing opportunity of being heard to the assessee.

9.

Resultantly, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 19.01.2023.

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