MOHAMMED FAZIL,SHIMOGA vs. INCOME-TAX OFFICER, WARD -1 TPS, SHIMOGA, SHIMOGA

Briefly stated facts of the case are on the basis of receipt of credible information and based on the information which was flagged as per RMS formulated by CBDT, it was noticed that the assessee entered into an immovable property transaction amounting to Rs.1,11,87,000/-. The learned AO initiated the proceedings under section 148 of the Act after obtaining permission from competent authorities. The assessee has not filed the return of income for the year under consideration. Thereafter, notice under section 142(1) of the Act was issued and served on the assessee. However, the assessee neither filed his return of income nor filed any response to the notice under section 142(1) of the Act. The learned AO therefore framed assessment under section 144 r.w.s. 147 of the Act by treating the amount as capital gain aggregating to Rs.1,11,87,000/-.

On being aggrieved by the Order of the learned AO, assessee filed appeal before the learned CIT(A). Before the learned CIT(A), the assessee contested the issuance of notice under section 147 of the Act which was issued without jurisdiction. However, the assessee filed the appeal before the learned CIT(A) with a delay of 206 days. The learned CIT(A), on perusal of the petition for condonation of delay, it was noticed that Assessment Order was delivered to email ID which did not belong to the assessee. The assessee submitted that while filing income tax return for the Assessment Yer 2017-18 he had furnished the email ID fazilrpt1976@gmail.com on which the communication ought to have been sent by the Revenue. However, the learned CIT(A) considered the explanation as very vague and was not justifiable having insufficient cause in terms of section 249(3) of the Act and therefore dismissed appeal of the assessee.

Aggrieved by the Order of the learned CIT(A), assessee is in appeal before us by raising the following grounds:

At the outset, the learned AR submitted that the communication of the AO was sent to email ID of the income tax practitioner (ITP) where the ITP failed to communicate to the assessee. He further stated that this was placed before the learned CIT(A), however, the learned CIT(A) did not consider the same as sufficient cause, therefore dismissed the appeal of the assessee. He pleaded that assessee may be given one final chance to support the grounds of appeal and prayed for remitting the issue back to the file of AO.

Per contra, the learned DR relied on the Orders of the Revenue authorities.

We have heard the rival contention and perused the material available on record. It is an admitted and undisputed fact that the assessee has failed to appear before the learned AO during the assessment proceedings stating that the notices have been sent to the email ID of ITP which was not communicated to the assessee. Before the Ld CIT(A) for the same reason the assessee has not appeared during the appeal proceedings. We note that the assessment order has been passed u/s 144 of the Act and the appellate order dismissed in limine without condoning the delay in filing the appeal and also without adjudicating the issue on merits. Considering the prayer of the learned AR, we are of the view that in the interest of substantial justice, we are of the opinion that assessee shall be provided with one more opportunity before the learned AO to submit the documentary evidences supporting the claims made by the assessee. Accordingly, we remand the issue back to the file of learned AO and direct the learned AO to assess the income denovo by providing one more opportunity of being heard to the asesssee. Needless to say, assessee shall co-operate with the assessment proceedings without seeking unnecessary adjournments failing which the learned AO shall be at liberty to frame the assessment in accordance with the material available on record. Since the issue has been remitted back to the learned AO, the other grounds raised by the assessee are left open. Accordingly, this appeal is allowed for statistical purposes.

In the result, appeal filed by the assessee is allowed for statistical purposes.