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Income Tax Appellate Tribunal, DELHI BENCH “G” DELHI
Before: SHRI CHALLA NAGENDRA PRASAD & SHRI PRADIP KUMAR KEDIA
PER PRADIP KUMAR KEDIA, A.M.: The captioned appeal has been filed at the instance of the assessee against the order of the Commissioner of Income Tax (Appeals)-VIII, New Delhi (‘CIT’ in short) dated 28.08.2019 arising from the assessment order dated 16.12.2018 passed by the Assessing Officer (AO) under Section 147 r.w. Section 143(3) of the Income Tax Act, 1961 (the Act) concerning AY 2011-12.
The grounds of appeal raised by the assessee reads as under:
A) That on the facts & circumstances of the case the learned ITO & the CIT(A) erred in : a) That learned Assessing Officer has erred in reopening the assessment, which had set at rest long back, purely on the basis of the information received from the investigation wing of the Income Tax without verifying the genuineness of the same from the records and framing his mind independently. b) That learned Assessing Officer has erred in invoking section 68 of the Income Tax Act without finding any credit in the books of the appellant, where nature or source of such credit has not been explained by the appellant. c) That learned assessing officer erred in treating the sale proceeds of investments to M/s Octopus Infotel Private Limited for Rs.1,65,00,000/- received from Axis Bank, Kalbadevi, Mumbai, branch, as appellants own income from undisclosed sources when he did not find any alleged credit of Rs.70,00,000/- that too from Axis Bank, Sarat Bose Road, Kolkata branch, in the books of the appellant during the course of reassessment. d) That learned Assessing Officer has no jurisdiction to reassess the issues other than the issues in respect of which the proceeding were initiated, he was not justified to do so when the reasons for initiation of those proceedings had ceased to survive. e) That learned assessing officer erred in not providing the copy of the statements recorded in the back of the appellant in reopening as well as framing the assessment, in spite of specific request of the appellant. f) That learned assessing officer has also erred in not calling and affording an opportunity to cross examine the witness of the department, whose assertions have been relied to initiate reopening proceedings and framing assessment against the appellant, in spite of specific request of the appellant during the course of reassessment. g) The learned assessing officer has also erred in treating the proceeds received against the sale of investments as appellants own income from undisclosed sources in complete disregard to appellant's providing all necessary documents with regard to the genuine sale of investments and that too after independently verifying the same by issues of notice to the purchaser. h) That the assessment order is erroneous and unsustainable in law as well as on merits and so addition made therein. i) The orders passed by learned assessing officer is bad in law and against the principles of natural justice. j) That on the facts and circumstances of the case the learned Assessing Officer erred in making the addition merely on the basis of investigation report without doing any enquiry on his own. k) That the Assessee had moved adjournment application before the CIT(A) online which have not been considered by the CIT(A) and therefore adequate opportunity has not been given by the CIT(A).
3. When the matter was called for hearing, the ld. counsel for the assessee straightaway submitted that the CIT(A) has dismissed the appeal of the assessee ex-parte and thus endorsed the additions/disallowances challenged in the first appeal. In the matter, the ld. counsel referred to a tabular statement at paragraph 3 of the first appellate order and pointed out that online adjournment request was solicited vide letter dated 22nd July, 2019, 29th July, 2019, 7th August, 2019 and also 23rd August, 2019. Thus, the adverse observation of the CIT(A) for non attendance is without considering the online request made on behalf of the assessee. Ld. counsel thus submitted that a fresh opportunity should be given to the assessee to prevent miscarriage of justice and the matter be restored to the file of CIT(A) for denovo adjudication in accordance with law.
4. Ld. DR for the Revenue, on the other hand, relied upon the order of the CIT(A) and submitted that the CIT(A) in the instant case has also adjudicated the issue on merit and therefore failure of the assessee to attend the first appellate proceedings should not be condoned.
5. On careful consideration of the rival submissions and on perusal of the orders of the lower authorities, we notice that the assessee has duly attended the assessment proceedings before the Assessing Officer and the assessment was framed under Section 147 r.w. Section 143(3) of the Act. However, the assessee has not attended before the CIT(A) despite multiple notices. Notwithstanding, we observe in the same vein, that the assessee has duly responded to the notices through e-mail, the cognizance of which has not been taken by the CIT(A) at all. The CIT(A) proceeded to dispose of the appeal on the premise of total non compliance of notices oblivious of the request for adjournment.
6. On merits, the CIT(A) has merely reiterated the observations made by the Assessing Officer and summarily disposed of the appeal. The facts recorded in the statement of facts does not appear to have been dealt with. For instance, as per the statement of fact, the assessee had requested the Assessing Officer to afford an opportunity to cross-examine the witness of the Department, i.e., Mr. Jagdish Prasad Purohit. The CIT(A) has not looked into such material aspects at all which has resulted in miscarriage of justice.
7. In the circumstances, it will be just and fair to provide an opportunity afresh to the assessee to adduce evidences and furnish such explanation as may be considered expedient before the CIT(A). The issues involved are accordingly restored to the file of the CIT(A) for denovo adjudication of all issues involved.
In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 18/07/2022.