SUNIL BALKRISHNA SHINDE,PUNE vs. DCIT CIRCLE 7, PUNE

Briefly stated, the facts of the case are that the assessee is an individual. For AY. 2015-16, the assessee did not file his return of income. Based on the information flagged on Non-filer Monitoring System (NMS), the case was reopened by issue of notice u/s. 148 of the Act in response to which the assessee filed his return of income declaring total income of Rs. 1,16,31,500/- after claiming deduction under chapter-VIA of Rs. 2,41,00,000/-. The assessment was completed by the Ld. Assessing Officer (“AO”) u/s.143(3) r.w.s. 147 r.w.s. 144B of the Act at the assessed income of Rs. 1,50,80,314/- vide his order dt. 30-03-2022, thereby making the following additions/disallowances: i. Disallowance of donation of Rs.50,000/-; ii. Disallowance of deduction u/s. 57 of the Act of Rs.2,42,746/-; iii. Additionon account of unexplained investment u/s. 69A of Rs. 31,56,068/-;

The assessee filed appeal before the Ld.CIT(A)/NFAC challenging the aforesaid additions/disallowances. Despite service(s) of notice of hearing during the appellate proceedings, there was non-compliance which resulted in ex-parte decision by the Ld.CIT(A)/NFAC dismissing the appeal of the assessee.

Aggrieved the assessee is in appeal before the Tribunal raising the following grounds of appeal:

It is submitted by the Ld.AR that during the assessment proceedings, the assessee had responded to all the notices issued by the Ld.AO. Only the last notice/show cause notice which was issued on 29- 03-2022 could not be responded by the assessee and the Ld.AO passed the impugned assessment order on 30-03-2022 immediately on the next day of issue of the above show cause notice. The assessee was therefore, not provided with an adequate opportunity to substantiate his case before the Ld.AO. He further submitted that non-compliance to the notices of hearing issued by the Ld.CIT(A)/NFAC was not intentional. The assessee did not receive the notices as they were issued on the e-mail id of the previous tax consultant, who did not inform the assessee regarding the same. He submitted that the assessee has a strong case on merits and urged that an opportunity may be granted to the assessee to substantiate his case by filing the requisite details/documents/evidences.

The Ld.DR, on the other hand, supported the order of the Ld.AO and the Ld.CIT(A)/NFAC.

We have heard the Ld. Representatives of the Parties and perused the material available on record. We find that the Ld.AO completed the assessment determining the assessed income of the assessee at Rs. 1,50,80,314/-, thereby making several additions/disallowances stated above. We find that the Ld.CIT(A)/NFAC has passed an ex-parte order dismissing the appeal of the assessee for non-prosecution. Before us, the Ld. Counsel for the assessee has submitted that the assessee was not provided with an adequate opportunity by the Ld.AO to make his submissions in respect of the additions/disallowances made in the assessment order. We find that the Ld.AO has himself recorded in para 4 of the assessment order that the assessee was issued a show cause notice on 29-03-2022 and he passed the impugned assessment order on 30-03- 2022 itself, which makes it evidently clear that the assessee was deprived of the adequate opportunity to substantiate his case. Further, the impugned appellate order reveals that the Ld.CIT(A)/NFAC has applied the decision of the Hon‟ble Supreme Court in the case of B.N. Bhattacharjee and Another [118 ITR 461] and M/s. Chemipol vs. Union of India in Excise Appeal No. 62 of 2009 (Hon'ble Bombay High Court) dismissed the appeal of the assessee for non-prosecution. We observe that the Ld.CIT(A)/NFAC has passed the impugned order in concurrence with the order of the Ld.AO without himself going into the merits of the case. Considering the totality of the facts and in the circumstances of the case, we deem it fit and proper, in the interest of justice, to set aside the impugned order of the Ld.CIT(A)/NFAC and restore the matter back to the file of the Ld.AO for adjudication afresh on merits and as per fact and law, after affording due opportunity of hearing to the assessee. Needless to say, the assessee shall 5 comply with the notices issued by the Ld.CIT(A)/NFAC and make his submissions on the appointed date without seeking any adjournment under any pretext, unless required for the sufficient cause, failing which the Ld.CIT(A)/NFAC shall be at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.

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

The concerned Pr.CIT, Pune

DR, ITAT, „B‟ Bench, Pune 5. ग र्ड फ ईल / Guard file. आदेशानुसार/ BY ORDER, ////