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Income Tax Appellate Tribunal, ‘SMC’ BENCH VARANASI
BEFORE SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER (A.Y: 2017-18) Rakesh Kumar Gupta, Vs. Income Tax Officer, Bakharipur, Ward 3(5), Mohammadabad, Ghazipur District- Ghazipur Uttar Pradesh. Uttar Pradesh PAN/GIR No. : AXHPG7724R Appellant .. Respondent Appellant by : Shri O.P. Shukla, And Shri Ashutosh Barnwal, Advocates.AR Respondent by : Shri A.K. Singh. DR Date of Hearing 12.04.2023 Date of Pronouncement 12.04.2023 आदेश / O R D E R
PER PAVAN KUMAR GADALE JM:
The assessee has filed the appeal against the order of the National Faceless Appeal Centre (NFAC), Delhi/CIT(A) passed u/s. 250 of the Income Tax Act, 1961. Rakesh Kumar Gupta - 2 - 2. At the time of hearing, Ld.AR of the assessee submitted that there is a delay in filing the appeal and the assessee was suffering from cancer and filed an application for condonation of delay along with details of medical diagnosis to substantiate the reasonable cause for delay of 151 days in filing the appeal. We have considered the facts mentioned in the condo nation application and supporting the evidences and find that the assessee has explained the reasonable cause for the delay and the Ld. DR has no serious objections. Accordingly,we condone the delay and admit the appeal and heard.
The assessee has raised the following grounds of appeal:
“1. Because, appellate order passed by learned CIT (Appeals) is bad in law as well as facts and liable to be canceled.
Because, learned CIT (Appeals) was not justified to make addition on amount Rs.2227054/- treating dimmed Income u/s 69 A. I. T. Act. and Rs. 519646/- as undisclosed business profit.
3. Because, learned CIT (Appeals) and assessing office passed the ex-parte order without giving proper opportunity to the Rakesh Kumar Gupta - 3 - appellant and considering documentary evidences available on records. Appellant is suffering from cancer and is not in a position to move anywhere. Medical proof is enclosed herewith.
4. Because, learned authority passed the order without considering that case was selected under 'Limited Scrutiny and passed the order without giving proper opportunity to the appellant.
Because, learned CIT (Appeals) was not justified to charge Tax @60%+ Surcharge on deemed incomes 2227054/- u/s 115 BBE of the Income Tax Act.
Because, the appellant craves for a right to raise any additional ground during the course of hearing of the case.
Because, order passed by learned CIT (Appeals) is erroneous, unjust and arbitrary and liable to canceled.”
The brief facts of the case that the assessee is an individual and is engaged in business and filed the return of income for the AY 2017-18 on 06.11.2017 disclosing a total income of Rs.2,69,910/-. Subsequently, the case was selected for limited scrutiny through CASS in respect of verification of cash deposits made during the ITA No. 18/Vns/2023 Rakesh Kumar Gupta - 4 - financial year 2016-17. Further notice u/s. 143(2) and 142(1) of the Act was issued through ITBA and by speed post. The Assessing Officer has referred to the notices issued on various dates, were the assessee has neither attended the office nor Authorized Representative has appeared and no material information was filed. Therefore the Assessing Officer based on the information available on record has issued the notice u/s. 133(6) of the Act on the bank for the bank account statements of the assessee maintained with Allahabad Bank.
5.The Assessing Officer observed that the assessee has made total deposits of Rs.1,81,30,146/- in the F.Y.2016-17. The Assessing Officer found that the assesee has not made the complete disclosure of income and the amount of Rs.22,27,054/- is added u/sec69A of the Act Further, the Assessing Officer has estimated the profit @10% on the undisclosed turnover which works out to Rs.5,19,646/- and determined the total income of Rs.30,16,610/- and passed the order under Section 144 of the Act dated 09.12.2019. Rakesh Kumar Gupta - 5 - 6. Aggrieved by the order, the assessee has filed an appeal with the ld. CIT(A). The ld. CIT(A) considered the grounds of appeal, statement of facts and issued notice of hearing to the assessee as per the address provided and also through e-mail. Since, there was no compliance to the notices nor any application was filed for adjournment. The CIT(A) has considered the statement of facts, findings of the Assessing Officer and confirmed the additions made by the Assessing Officer and dismissed the appeal. Aggrieved by the CIT(A) order, the assessee has filed an appeal before the Hon’ble Tribunal.
7. At the time of hearing, theLd. AR submitted that the ld. CIT(A) has erred in sustaining the additions of the Assessing Officer irrespective of the facts that the assessee has disclosed the turnover in the books of account and filed the return of income and due to personal health reasons there was no compliance before the lower authorities. Further the Ld. AR submitted that the assessee has good case on merits and shall substantiate with the material evidences before lower authorities and prayed for an Rakesh Kumar Gupta - 6 - opportunity of hearing. Contra, Ld.DR supported the order of the ld. CIT(A).
We heard the rival submissions and perused the material on record. Prima-facie the CIT(A) has passed the order considering the fact that there is no appearance in spite of providing adequate opportunity of hearing and the notices were issued. Therefore, the CIT(A) was of the opinion that the assessee is not interested in prosecuting the appeal and dismissed the appeal ex-parte confirming the action of the assessing officer. We find the Ld. CIT(A) has issued the notices of hearing referred at para 3 of the order but there was no response and thus the Ld.CIT(A) came to a conclusion that the assessee is not interested and decided the appeal based on the information available on record. We find that the assessee has raised grounds of appeal challenging the additions of the assessing officer and there could be various reasons for non appearance which cannot be overruled. We considering the principles of natural justice shall provide one more opportunity of hearing to the assessee to substantiate the case before the CIT(A) Rakesh Kumar Gupta - 7 - along with evidences and information. Accordingly, we set aside the order of the CIT(A) and remit the entire disputed issues to the file of the CIT(A) to adjudicate afresh on merits and the assessee should cooperate in submitting the information for early disposal of the appeal and allow the grounds of appeal of the assessee for statistical purposes.
In the result, the appeal filed by the assessee is treated as allowed for statistical purposes.