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Income Tax Appellate Tribunal, DELHI “SMC” BENCH: NEW DELHI
Before: SHRI KUL BHARAT
ORDER
PER KUL BHARAT, JM :
The present appeal filed by the assessee for the assessment year 2009- 10 is directed against the order of Ld. CIT(A), Ghaziabad dated 26.03.2019.
The assessee has raised following ground of appeal:- 1. “That on the facts & in the circumstances of the case and in law, the order passed by the Ld. Commissioner of Income Tax (Appeals) [CIT(A)] & Assessing officer ("AO") is wrong and bad in law.
2. That the Ld. CIT(A) is not justified in disposing off the appeal ex- parte without allowing sufficient and real opportunity to the appellant to represent the case and hence, the impugned order passed requires to be set-aside / cancelled.
3. That the Ld. AO did not provided the sufficient opportunity of being heard, thus failed to follow the principle of Natural justice and passed the ex-parte order.
4. That the Ld. CIT (A) and Ld. AO erred both on facts and circumstances of the case and in law, on facts and in surrounding circumstances in making huge impugned addition of Rs.22,32,400 on account of Credit entry in the saving bank account without 1 | P a g e verifying the fact of the case in an arbitrary and cursory manner on the basis of assumption and presumption.
5. That The Ld. CIT(A) erred in not condoling the delay in filing the appeal before CIT(A) Appeals in spite of the reason that the delay was not due to default of the appellant.
6. That The Ld. CIT(A) erred in considering the appeal in defect.
7. That the Ld. AO / Ld. CIT(A) has erred on the facts and circumstances of the case and in law in initiating the penalty proceedings under section 27i(i)(c) of the Act.
8. That the above grounds of appeal
are without prejudice to each other.
9. That the appellant reserves its right to add, alter, amend or withdraw any ground of appeal either before or at the time of hearing of this appeal.” FACTS OF THE CASE
3. Facts giving rise to the present appeal are that the assessee is in Government service. The case was re-opened u/s 147 of the Income Tax Act, 1961 [“the Act”] after obtaining the necessary approval from the Competent Authority on the basis of AIR information that the assessee deposited cash of Rs.13,19,000/- in saving bank a/c No.1001005006784 maintained with Mahamedha Urban Co-operative Bank Ltd. Thereafter, a notice u/s 148 of the Act was issued to the assessee on 10.03.2016 through speed post which was duly served upon the assessee. Thereafter, a notice u/s 142(1) of the Act dated 20.05.2016 was issued to the assessee and served upon the assessee on 30.05.2016 for filing of income tax return for AY 2009-10. In respect of the aforesaid statutory notices, neither any one attended the proceedings nor any written reply/submissions were received on behalf of the assessee by the Assessing Officer [“AO”]. Thereafter, a notice u/s 144 of the Act dated 10.06.2016 was issued and duly served upon the assessee on 23.06.2016 for 2 | P a g e compliance. In response to this notice, the assessee again failed to file any return of income for AY 2009-10 and further made non-compliance of notice issued u/s 142(1)/144 of the Act. Thereafter, the AO assessed the income of the assessee at Rs.22,32,400/- vide order dated 29.06.2016 u/s 144/147 of the Act.
4. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A), who after considering the submissions, dismissed the appeal of the assessee.
5. Aggrieved against the order of Ld.CIT(A), the assessee is in appeal before this Tribunal.
6. Ld. Counsel for the assessee submitted that the assessment order and the order passed by Ld.CIT(A) was at the back of the assessee. The assessee was not given sufficient opportunity and without considering the material. Ld.CIT(A) dismissed the appeal of the assessee on the ground of delay. It is contended that the assessee was in Government service and has been frequently transferred from one place to another place and could not receive the notice issued by the AO and the assessment order was also not received by the assessee. It was only when the demand was raised and at that time, the assessee came to know about the proceedings therefore, the assessee could not file appeal before Ld.CIT(A) within the time as prescribed under the Act.
On the contrary, Ld. Sr. DR opposed these submissions and submitted that the assessee should have been vigilant. It was incumbent upon the assessee to provide the current address to the assessing authority.
In re-joinder, Ld. Counsel for the assessee stated that under the identical facts, the Co-ordinate Bench of the Tribunal in restored the assessment to the file of AO for AY 2010-11 vide order dated 08.07.2019.
I have heard Ld. Authorized representatives of the parties and perused the material available on record and gone through the orders of the authorities below. The Co-ordinate Bench of the Tribunal in vide order dated 08.07.2019 in the case of the assessee, had has restored the assessment to the file of AO for AY 2010-11. Ld. Counsel for the assessee submitted that for the same reasoning, the impugned order may be set aside to sub-serve the interest of principal of natural justice. Looking to the facts of the case that the assessee is in Government service and frequently subjected to transfer from one place to another place. Moreover, no advantage is taken by the assessee for non-filing of appeal before the authority below. Respectfully following the decision of the Hon’ble Supreme Court in the case of Collector of Land Acquisition vs Mst . Katiji & Ors. 167 ITR 471, I condone the delay in filing the appeal before the CIT(A) and restore the grounds to the Ld. CIT(A) to decide the issue on merit, after providing reasonable opportunity of being heard to the assessee. Thus, grounds raised by the assessee are allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 30th August, 2022.