SANJAU BAJIRAO BALWADKAR,PUNE vs. ITO WD-2(2), PUNE

Briefly stated, the facts of the case are that the assessee is an individual. He did not file his return of income for AY. 2018-19. Based on the information flagged on the insight portal of the Department that the assessee has entered into certain transactions of sale/purchase of immovable property and earned interest income during the relevant AY. which have not been offered to tax and remained unexplained/undisclosed due to non-filing of return, the case of the assessee was reopened by issue of notice u/s. 148 of the Act, dt. 12-04-2022. However, the assessee failed to respond to the said notice. Subsequent notices issued u/s. 142(1) of the Act as well as show cause notice issued u/s. 144 of the Act also remained un-complied by the assessee. Since the assessee did not furnish any replies/submission, the Ld.AO proceeded to complete the assessment ex-parte and determined the total income of the assessee at Rs. 1,72,47,404/- thereby making an addition of Rs.1,72,40,978/- on account of short term capital gain and Rs. 6,426/- on account of interest income, vide his order dt. 27-03-2024 passed u/s. 147 r.w.s. 144 r.w.s. 144B of the Act.

On appeal before the Ld.CIT(A)/NFAC, despite service(s) of notice of hearing issued during the appellate proceedings, there was non- compliance on the part of the assessee which resulted in ex-parte decision by the Ld.CIT(A)/NFAC dismissing the appeal of the assessee.

Dissatisfied, the assessee is in appeal before the Tribunal raising the following Grounds of Appeal:

We have heard the Ld. Representatives of the Parties and perused the material available on record. It is submitted by the Ld.AR that during the course of assessment proceedings, the assessee did not receive the notices of hearing issued by the Ld.AO as they were sent on an incorrect e- mail id. Further, non-compliance before the Ld.CIT(A)/NFAC has also occurred due to non-receipt of notices by the assessee for the reason that the notices were sent on e-mail ids which did not belong to the assessee. The Ld.AR submitted an affidavit of the assessee in support thereof.

We, however, observe that the Ld.CIT(A)/NFAC is silent on merits of the case and the issue(s) raised by the assessee before him. Perusal of the appellate order reveals that the Ld.CIT(A)/NFAC has applied the decision in the case of B.N. Bhattacharjee and Another [118 ITR 461] and several other decisions and dismissed the case of the assessee for non- prosecution. No doubt, the Ld.CIT(A)/NFAC may decide the appeal where the assessee does not prosecute his appeal in spite of several opportunities. Nonetheless, he has to adhere to legislative mandate

On the facts and in the circumstances of the case, we are of the opinion that in the interest of justice and fair play, the matter deserves to be sent back to the Ld.CIT(A)/NFAC for adjudication afresh on merits. The Ld.DR had no objection if the matter is set aside to the file of the Ld.CIT(A)/NFAC. Accordingly, we set aside the impugned order of the Ld.CIT(A)/NFAC and direct him to decide the appeal denovo on merits and as per fact and law, after affording reasonable opportunity of hearing to the parties. The assessee shall co-operate fully during the appellate proceedings and make his submission 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 the appropriate order in accordance with law. We hold and direct accordingly. The grounds of appeal 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, ////