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Income Tax Appellate Tribunal, PUNE BENCHES “B” :: PUNE
Before: SHRI S.S.GODARA & DR. DIPAK P. RIPOTE
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the Assessee is directed against the order of ld.Commissioner of Income Tax(Appeal)National Faceless Appeal Centre, Delhi dated 04.05.2023 emanating from the assessment order dated 15.12.2018 under section 144 of the Income Tax Act, 1961 for the A.Y.2016-17. The Assessee has raised the following grounds of appeal:
Shri Pravin Pandurang Padalkar [A]
“A (i) The learned CIT (A)-NFAC has erred in confirming the additions made Rs.36,30,180/- and Income assessed at Rs.44,86,462/- by the learned AO-ITO Ward-2, Panvel.
(ii) The learned CIT (A)-NFAC failed or neglected to consider the written submission dated 17/02/2023 as per acknowledgment No. 958992211170223 and didn’t offer adequate and further opportunity and passed the order in harried manner.
(iii) The learned CIT (A) has erred in alleging non compliance, although the assessee made major/total submission in support of grounds of appeal taken and total addition disputed.
(iv) The assessee request to consider the written submission made in the present appeal or to direct the learned CIT(A) to give opportunity or to restore the issue to the file of the AO as the demand is causing hardship and the assessee never earned income as assessed.
(v) The assessee submits that he was not properly represented in the assessment proceedings, which he could realise on passing of the assessment order and causing mental agony and request for opportunity.
B. The appellant craves leave to add, alter or omit or amend any of the grounds of appeal
.” Brief Facts of the case :
2. The assessee is a medical professional, e-filed Return of Income for A.Y. 2016-17 on 17/01/2017 declaring total income
Shri Pravin Pandurang Padalkar [A] of Rs.8,56,280/-. The case was selected for scrutiny under CASS and accordingly notice u/s.143(2) of the Income Tax Act 1961 was issued on 09/08/2018 and served upon the assessee.
2.1 The assessee was provided with an opportunity vide notice u/s.142(1) of the income-tax Act, 1961 issued on 28/08/2018, However, the assessee has failed to furnish any information. The case was selected for 'Complete Scrutiny' under CASS with reason specifying as large value receipt or repayment of loans other than through banking channels. The assessment order was passed under section 144 of the Act, assessing the total income at Rs.44,86,460/-.
2.2 Aggrieved by the order of the Assessing Officer(AO), the assessee filed appeal before the ld.CIT(A). The ld.CIT(A) dismissed the appeal of the without discussing the merits of the case.
Aggrieved by the order of the ld.CIT(A), the assessee filed appeal before this Tribunal and the ld.AR of the assessee requested that case may be set-aside to the ld.CIT(A) so that assessee may get an opportunity to explain the case and file all relevant documents. Ld.AR argued that all necessary details
Shri Pravin Pandurang Padalkar [A] were filed before the ld.CIT(A). However, ld.CIT(A) has erroneously stated in the order that no details were filed.
4. The ld.Departmental Representative(ld.DR) for the Revenue relied on the orders of the Lower Authorities.
5. We have heard both the parties and perused the records. The ld.CIT(A) has dismissed the appeal of the assessee in para 4.3 of the order without discussing merits of the case merely for non-appearance. It is mandatory for the ld.CIT(A) to discuss the grounds of appeal on merit and pass a speaking order. However, in this case the ld.CIT(A) failed to pass a speaking order.
5.1 We find that the decision in ITAT Amritsar Bench Kashmir Road Lines Vs. DCIT, [2021] 123 taxmann.com 5 held as under : 3. Coming to the merits of the case, from the impugned order it reflects that though the Ld. CIT(A) fixed the case for hearing on various dates, however on most of the dates, the Assessee neither attended the appellate proceedings nor filed any adjournment application and therefore the Ld. CIT(A) while observing that the appellant/assessee is not interested in pursuing its appeal, dismissed the same.
We have given our thoughtful consideration to the order impugned herein. The Appellant most of the times, did not bother itself on one or other reason(s) to appear and co- ordinate with appellate proceedings even after availing various
Shri Pravin Pandurang Padalkar [A] opportunities. Although the instant appeal of the assessee is liable to be dismissed in order to give effect to the principle that law does not assist the person who is inactive and sleeps over his rights by allowing them when challenged or disputed to remain dormant, without asserting them in a court of law. The, principle which forms the basis of this rule is expressed in the maxim vigilantibus, non dormientibus, jura subveniunt (Law assists those who are vigilant and not those who sleep over their rights), but even a vigilant litigant is prone to commit mistakes. As the aphorism to err is human and is more a practical notion of human behavior than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine, therefore, considering the facts that the Ld. CIT(A) did not pass the order under challenge on merit, we feel it appropriate to set aside the impugned order and to remand back the instant case to the file of the Ld. CIT(A) for decision afresh on merits, suffice to say while affording proper and reasonable opportunity of being heard to the assessee/appellant, in order to follow the principle of natural justice. We also feel it appropriate to direct the Assessee/Appellant to extend its full co-operation and participation in the appellate proceedings before the Ld. CIT(A) as and when would be required and in case of default, the assessee shall not be subjected to any leniency.
In the result, the appeal filed by the assessee is allowed for statistical purposes.”
Therefore, respectfully following the above decision and in the principles of natural justice, the case is set-aside to ld.CIT(A) for denovo adjudication. Ld.CIT(A) shall provide opportunity to the assessee. The Assessee shall file all necessary details before the ld.CIT(A) with the first opportunity. Accordingly, grounds of appeal of the assessee are allowed for statistical purpose.
Shri Pravin Pandurang Padalkar [A]
In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 20th July, 2023.