MR DHARMRAJ LAXMAN KURVE,MUMBAI vs. INCOME TAX OFFICER-23(1)(4), MUMBAI

In this appeal, the assessee has raised the following grounds:

The brief facts of the case as emanating from the record are: For the year under consideration, the assessee filed its return of income on 31/03/2015, declaring a total income of Rs. 4,30,015. The return filed by the assessee was selected for scrutiny and statutory notices under section 143(2) and section 142(1) along with a questionnaire, were issued to the assessee. During the assessment proceedings, the Assessing Officer (‘AO’) issued notice to the assessee to furnish the details. However, no compliance was made by the assessee. The AO also issued a show cause notice as to why a penalty under section 271(1)(b) of the Act be not levied for non-compliance with the notices, however, the same was also not complied with by the assessee and accordingly, order under section 271(1)(b) of the Act was passed on 29/01/2016, imposing a penalty of Rs.10,000, on the assessee for failure to comply with the notice issued under section 142(1) of the Act. However, even after the levy of the penalty, there was no compliance from the side of the assessee. Accordingly, the AO proceeded to compute the assessment ex-parte

In the appeal before the learned CIT(A), despite various notices being issued, no reply/submission was filed on behalf of the assessee. Accordingly, vide impugned ex–parte order dated 13/09/2022, the learned CIT(A) dismissed the appeal filed by the assessee by upholding the addition made by the AO in the absence of any contradictory material being available on record. Being aggrieved, the assessee is in appeal before us.

During the hearing, the learned Authorised Representative (‘learned AR’) submitted that the assessee did not receive any of the notices issued by the AO, as the same was only uploaded on the portal of the Income Tax Department. As regards the notices issued by the learned CIT(A), the learned AR submitted that the notice dated 10/01/2021, was issued by the learned CIT(A) during the COVID pandemic period and therefore the same could not be attended by the assessee. The learned AR submitted that on 26/08/2022, the learned CIT(A) issued a notice and granted the time to the assessee to file written submission on or before 12/09/2022. In response thereto, the assessee on 12/09/2022, requested for an adjournment upto 27/09/2022, before the learned CIT(A). However, to its surprise, the learned CIT(A) passed the impugned order on the very next day i.e. 13/09/2022. Thus, it was Shri Dharamraj Laxman Kurve ITA no.2801/Mum./2022 submitted that no proper opportunity of hearing was granted to the assessee by the learned CIT(A) while disposing of the appeal.

On the contrary, the learned Departmental Representative submitted that the assessee did not comply with various notices issued by the AO during the assessment proceedings and the assessment in the case of the assessee was completed under section 144 of the Act.

We have considered the rival submissions and perused the material available on record. It is evident from the record that the learned CIT(A) has passed the order ex-parte due to the non-appearance of/on behalf of the assessee. From the perusal of the documents forming part of the paper book, we find that the learned CIT(A) vide notice dated 26/08/2022, directed the assessee to file its written submission on or before 12/09/2022. We further find that the said notice was duly responded to by the assessee and the request for adjournment of 15 days, i.e. up to 27/09/2022, was made on behalf of the assessee before the learned CIT(A) on the basis that the assessee is gathering material from multiple sources, which requires further time. However, we find that the learned CIT(A) without taking note of the adjournment requested by the assessee passed the impugned order dismissing the appeal filed by the assessee and upheld the addition made by the AO under section 69A of the Act. We also find that during the assessment proceedings, the assessee did not respond to various notices which are alleged to have been issued and served on the assessee. As per the assessee, the said notices were merely uploaded on the portal of the Income Tax Department. Now in appeal before us, the assessee is duly represented by the learned Page | 4

In the result, the appeal by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 17/01/2023