LAXMINARAYAN PATIDAR,INDORE vs. ITO-1(1), INDORE, INDORE

Per Paresh M Joshi, J.M.:

This is an Appeal filed by the assessee under section 253 of the

Income tax Act-1961, (herein after referred to as the Act for the

sake of brevity) before this tribunal as & by way of a second

appeal. The Assessee is aggrieved by the order bearing number:-

ITBA/NFAC/S/250/2025-26/1083405833(1) dated 08-12-2025

passed by the Ld CIT(A) u/s 250 of the Act, which is herein after

referred to as the “Impugned Order”. The relevant assessment year is 2018-2019 and the corresponding previous year period is

from 01-04-2017 to 31-03-2018.

2.1 That as and by way of an assessment order made u/s 147

rws 144B of the Act, the total Income of the Assessee was

computed & assessed at Rs. 15,22,259/-. The income as per the

return of Income filed u/s 139 was at Rs 288/-. The Income as

per the return of Income filed u/s 148 was too at Rs 288/-. The

addition/variation was made at Rs 15,21,971/- u/s 69A of the

Act. The broad issue was “Unexplained source of money”. That

the aforesaid assessment order bears number:-

ITBA/AST/S/147/2023-24/1063537846(1) & that the same is

dated 28-03-2024 which is herein after referred to as the

“Impugned Assessment Order”.

2.2 That the Assessee being aggrieved by the aforesaid

“Impugned Assessment Order” prefers the first appeal

u/s 246A of the Act before the Ld. CIT (A) who by the

“Impugned Order” has dismissed the first appeal of the Assessee on the grounds & reasons stated therein. The core

grounds & reasons for the dismissal of the first appeal were

as under:-

“5.0 Decision 5.1 During the appellate proceedings, the following notices u/s 250 were issued. The details of compliances to the notices are tabulated as under: SI. Date of notice Date for Remarks No. compliance 1 08.07.2025 15.07.2025 No response 2 04.09.2025 11.09.2025 No response 3 29.10.2025 05.11.2025 No response 4 07.11.2025 14.11.2025 Assessee has requested 5 14.11.2025 27.11.2025 No response 6 28.11.2025 05.12.2025 No response

As and As can be seen from the above table as many a granted. On verification of the ITBA portal, it is observed that all the above- mentioned s many as SIX opportunities have been hearing notices got delivered to email dwrpp6267a@gmail.com MAHENDRAMITTALANDCO@GMAIL.COM successfully it is evident that the appellant is neither filing any details nor availing the opportunity to seek adjournment to file the same during the appellate proceedings under the principle of natural justice.

5.2 In this regard, the reliance is place on the decision of the Hon'ble Supreme Court in the case of B.N. Bhattacharjee and Another (118 ITR 461) wherein it has been held that appeal does not mean merely filing of memo of appeal but also pursuing it effectively. In cases where the appellant does not want to pursue the appeal, appellate authorities have inherent power to dismiss the appeal for non-prosecution as held by the Hon'ble Bombay High Court in the case of M/s Chemipol vs. Union of India in Excise Appeal No. 62 of 2009. While deciding the issue, the Hon'ble High Court of Bombay has referred to the observations of Hidayatullah, Chief Justice (as His Lordship then was) in Sunderlal Mannalal Vs. Nandramdas Dwarkadas AIR 1958 MP 260 wherein it was observed: - "Now the Act does not give any power of dismissal. But it is axiomatic that no court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is an inherent power which every tribunal possesses..."

5.3 This appeal has been filed by the appellant claiming that the action of the Assessing Officer is not supported by facts and laws and that it is unjust. In such a situation, it is for the appellant to furnish submissions with relevant evidence(s), case laws, if any, to support the claim. The 'burden of proof is always on the person who makes the claim. In this case, it is the appellant who has made the claim by filing the appeal. Thus, in cases where a particular receipt is sought to be taxed as income, the initial onus is on the Assessing Officer to prove that it is taxable. Since an appeal is nothing but the claim of the appellant that he has been unduly unjustifiably taxed, it is for the appellant to prove its case. The appellant has not availed any opportunity to do so. 5.4 From the conduct of the appellant as per the facts noted above, the appellant does not wish to pursue the appeal. Though the appellant filed appeal but remained non-compliant during the appellate proceedings also and not furnished any evidences to satisfy the appellate authority. Even otherwise on the merits of it also, I do not see any reason to differ with the findings of the AO since no attempt has been made by the appellant to discharge its onus. Hence, respectfully following the above-mentioned judicial pronouncements and in view of the facts of the case, the appeal is hereby not allowed. 6.0 In effect, the appeal filed by the appellant is not allowed.”

2.3 That the Assessee being aggrieved by the “Impugned Order”

has preferred the Instant second appeal before this tribunal and

has raised the following grounds of appeal in the form no.-36

against the “Impugned Order” which are as under:-

“1. On the facts and circumstances of the case and in law, The Ld. 1 NFAC erred in upholding the action of Ld. AO in making an addition of Rs. 15,21,971/- u/s. 69A. 2. On the facts and circumstances of the case and in law, the provisions of Section 69A cannot be invoked. 3. On the facts and circumstances of the case and in law, the provisions of Section 115BBE cannot be invoked. 4. On the facts and circumstances of the case and in law, the assessment order dated 28.03.2024 is bad in law, without jurisdiction, and liable to be quashed. 5. On the facts and circumstances of the case and in law, the additions are made on mere conjectures, surmises and suspicions.

3.1 The hearing in the matter took place before this tribunal on

21-04-2026 when the Ld AR for & on the behalf of the Assessee

appeared before this tribunal and interalia contended that the

“Impugned Order” is bad in law, illegal and not proper. It is in

the violation of the principles of the natural justice. It therefore

deserves to be set aside. The Ld AR has placed on the record of

this tribunal a paper book containing pages 42 to 62. The ld AR

for& on the behalf of the Assessee submitted that in the “Impugned order” the Notice(s) were issued to the assessee six

times on different dates which is already specified by us as

aforesaid. Out of the 6 notice(s) the four notice(s) came on the

email provided as per form no:- 35 which was

dwrpp6267a@gmail.com. It was submitted that notice dated 28-

11-2025 & 14.11.2025 P57 & P58 PB came on email address

Mahendramittalandco@gmail.com which did not belong to the

Assessee. Whereas the Notice(s) dated 07-11-2025, 29-10-2025,

04-09-2025,08-07-2025 (pages 59 to 62) however came at email

as per the form No:- 35. It was submitted that last two notice(s)

dated 14-11-2025 & 28-11-2025 came at different email id

which fact must be noted & appreciated. The ld AR in the final

analysis pleaded that the Impugned Order be set aside & that the

matter may kindly be remanded back to the file of Ld CIT(A). Per

Contra the Ld DR for & on behalf of the revenue submitted that

the Dept. Of Income tax has no objection if this tribunal deems fit

to remand the matter back to the file of Ld CIT(A). Hearing was

over & closed.

Observations Findings & conclusions 4.

4.1 We have to decide the legality, validity and proprietary of the

“impugned order” basis records of the case & the rival

submission canvassed before us.

4.2 We have carefully perused the records of the case and have

heard the submissions.

4.3 We basis records of the case & after hearing & further upon

examining the rival contentions of the Ld AR and the Ld DR

canvassed before us, are of the considered opinion that the

“Impugned Order” is an exparte order as the assessee could not

get opportunities of hearing on 27-11-2025 & 05-12-2025 as

notice(s) 14-11-2025 & 28-11-2025 were not served upon his

email address as per the form no:- 35. In so far as the hearing

fixed for 14-11-2025 is concerned the assessee had sought

adjournment in response to notice dated 07-11-2025 on 13-11-

2025. The ld AR fairly conceded that for 15-07-2025, 11-09-2025

& 05-11-2025 through the opportunities were given by the

notice(s) dated 08-07-2025, 04-09-2025 & 29-10-2025, the

Assessee could not comply with. Under these peculiar facts &

circumstances we set aside the “impugned order” as the same

was passed in the violation of the principles of natural justice.

However we remand back the matter back to the file of Ld CIT (A)

for denovo adjudication. We however direct the assessee to

participate in the hearing which will now be fixed by giving fresh

notice(s) on the email address provided in the form no:- 35. The

Assessee will not seek any adjournment on any flimsy grounds.

The Ld CIT(A) is directed to pass a fresh order on denovo basis

which order should be on merits of the case. The order to be a

speaking & a reasoned one.

4.4 In view of the above, we set aside the “Impugned order” &

remand the case back to the file of Ld CIT(A) on denovo basis,

with directions as aforesaid.

5 Order

5.1 In the result the “Impugned order” is set aside as and by

way of remand back to the file of the Ld. CIT(A) on De novo basis

with directions as aforesaid.

5.2. The appeal of the assessee is allowed for statistical purpose.

Pronounced in open court on 30 .04.2026.

Sd/- Sd/-

(BHAGIRATH MAL BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Indore Dated : 30/04/2026 Patel/Sr. PS

Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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