SRI. SOMASHEKAR MARKAL ANANDA,BIJAPUR vs. DCIT-CENTRAL CIRCLE, BELGAUM

Pursuant to the search conducted in the case of the assessee on 18.08.2014, Orders of Assessment were framed under section 153A r.ws. 144 of the Income Tax Act, 1961 (herein after called ‘the Act’). Against the Orders of Assessment for the aforesaid Assessment Years, the assessee filed appeal before the CIT(A) with a delay of 149 days. The CIT(A), Panaji, dismissed all the appeals by order dated 22.07.2021 on the ground that there was no sufficient cause for the delay in filing the appeal. Against the orders of CIT(A), the assessee preferred appeal before the Tribunal and the Tribunal in to 466/Bang/2021 by Order dated 18.11.2022 set aside the order of the CIT(A) and condoned the delay in filing the appeals by the assessee before the CIT(A). The appeals were directed to be decided by the CIT(A) on merits for the aforesaid Assessment Years after affording the assessee opportunity of being heard.

Pursuant to the order of the ITAT, the notice of hearing was issued by the Office of the CIT(A), Panaji, dated 08.08.2022, allowing time to the assessee to file written submissions on or before 24.08.2022 at 11.48 AM. The assessee was also given right to appear personally for the hearing on 24.08.2022. The assessee filed a request for adjournment for a period of one month i.e., the adjournment was sought upto 08.09.2022. This is evident from the screen shot copy of the e-filing poral which is placed at page 1 of the assessee’s Paper Book. It appears that a notice dated 26.08.2022 fixing the case for hearing on 05.09.2022 was generated in the ITBA Portal. According to the assessee, the assessee did not receive any notice of hearing on 05.09.2022.

In paragraph 3 of the impugned order of the CIT(A), the CIT(A) has observed as follows: “Hearing in this case was fixed for 24.08.2022. In response to this, neither request for adjournment was filed nor any written submissions were filed.

We have heard the parties. It is clear from the screenshot of status of appeal to be heard by CIT(A) in virtual mode that copies of which are placed at pages 1 and 2 that for the hearing on 24.08.2022, the assessee has in fact asked for adjournment upto 08.09.2022 but the CIT(A) order says that no request for adjournment was made by the assessee. It is also seen that though notices have been generated in the ITBA portal, there is nothing to show that these notices were issued to the assessee either by posting it or sending the same by e-mail. In fact, the learned Counsel stated across the bar that no notice was either received by post or by email, by the Assessee. Learned Counsel also filed copy of the decision of the Hon’ble Delhi High Court in the case of Suman Jeet Agarwal Vs. ITO [2022] 143 taxmann.com 11 (Delhi) in which the Hon’ble Delhi High Court took the view that mere generation of notice on ITBA software cannot in fact or in law constitute issue of notice and it is only upon dispatch that the notice can be said to have been issued.

Keeping in mind the facts and circumstances set out as above, we are satisfied that the assessee has not had proper opportunity of being heard. In fact, the adjournment sought by the assessee for the hearing on 24.08.2022 has also not been acknowledged in the order of the CIT(A). The CIT(A) has in ignorance of the plea of the assessee, for fixing the appeal for hearing on 08.09.2022, proceeded to fix the appeal for hearing on 05.09.2022 and has passed an ex-parte order on 07.09.2022. There is no material to show that notice fixing the appeal for hearing was issued except the notice generated in ITBA portal. In the light of the decision of the Hon’ble Delhi High Court in the case of Suman Jeet Agarwal (supra) and in the absence of evidence to show that there was service of notice either by post or by e-mail to the assessee, the impugned orders have been held as orders passed in violation of principles of natural justice and accordingly they are set aside. The appeal on merits is remanded to the CIT(A) for fresh consideration in accordance with law after affording assessee proper opportunity of being heard. In view of the above conclusion, the other issues raised by the assessee are not being considered for adjudication.

In the result, appeals of the assessee are allowed for statistical purposes.