SURESH PATHAK,RAISEN vs. DCIT/ACIT 3(1) BHOPAL, BHOPAL

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

bearingNumber:-ITBA/NFAC/S/250/2024-25/1073035790(1)

dated 07.02.2025 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 2012-13 and the corresponding previous year period is from 01.04.2011 to

31.03.2012.

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

147 rws 143(3) of the Act, the total income of the Assessee

was computed & assessed at Rs. 47,38,240/- [R/o]. The

income as per the return of income was at Rs.16,46,240/-.

The addition of Rs.30,92,000/- was made u/s 69 as

unexplained sources of the investment by virtue of para 6 of

the aforesaid order i.e. purchase of immovable property.

That the aforesaid assessment order bears DIN No.

20121127634 & that the same is dated 16.12.2019 which is

here in 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 246 A 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 & the reasons for the dismissal of the first appeal

was as under:-

“(4.1)During the appeal proceedings the appellant had not filed written submission. Therefore, it was given multiple opportunities to file written submission. The notices were issued electronically through the ITBA, but the appellant has failed to comply with the same. The details of the notices issued are as under: (5) Thus, it may be seen from the table given above that the appellant had been given ample opportunities by way of issuing notices as detailed above but, the appellant had neither responded to the notices nor filed any written submission in compliance to such notices issued. The case is adjudicated based upon relevant information available on record (5.3) In view of the facts of the appellant under consideration and various judicious decisions cited above, I am of the considered opinion that the appellant is not willing to pursue the appeal and reserve his rights only mere filing of the memo of the appeal. Since the appellant has chosen not to attend the hearing and does not want to pursue any seriousness, I am left with no option but to decide the appeal on the basis of material available on records. (6) Appellant, an individual for the year under appeal had filed his return of income on 10/12/2012 declaring therein a total income of Rs. 16,46,240/-, The case of the appellant was reopened on the basis of AIR information as there was reason to believe that income chargeable to tax of Rs.30,92,000/- had escaped assessment within the meaning of section 147 of the Act. Therefore, notice u/s. 148 dated 27/03/2019 was issued at the last known address/email id of the appellant. The appellant was required to file its return of income. In response to notice u/s. 148, the appellant neither filed his return of income nor any reply submitted to the AO. Thereafter, statutory notices were also issued and served to the appellant requiring to file his explanation with respect to the source of purchase of immovable property. As there was no response from the appellant, the AO in the assessment order has held that the appellant has not furnished any reply nor sought adjournment and therefore, it was clear that appellant had nothing to say in the matter and accordingly, an amount of Rs.30,92,000/- was treated as investment from unexplained sources and added to the total income. The appellant in the statement of facts filed with Form no.35 that he had had declared his true return as per Audited Financial Statement. It is also stated in the statement of facts that appellant had purchased immovable property so it's not an Income, hence Assessing Officer is not Justifiable in reopening of case under explanation to Clause B of section 147. However, from the assessment order passed by the AO, it is noticed that the case of the appellant has been reopened by the AO after following all due procedures. The action of the AO in reopening the assessment based on the AIR information is held in order and as per law and no infirmity is noticed. Further, appellant also claimed that he has received notice on 18/12/2019 and AO passed assessment order on 16/12/2019 and stated that he was not given time. The claim of the appellant is not correct as narrated in the assessment order, paras.2, 3 & 4, the AO had given sufficient opportunities to the appellant, in spite of that appellant failed to make any submission for countering the proposition of the AO. Similarly, during the appellate proceedings except filing Form no.35, appellant failed to submit his submissions against the additions made by the AO in spite of giving sufficient opportunities. Based on the facts and legal positions discussed above, the appellant has remained non- compliant and has failed to discharge its primary onus to substantiate his grounds of appeal though all the notices were issued at the last known address/email id of the appellant available with the department. The appellant has not furnished any details of his change of address/email id furnished before the department, during the appellate proceedings. Therefore, it is presumed that the appellant is not interested in pursuing the appeal and does not have any documents, explanation and evidence to substantiate the grounds of appeal raised in the present appeal. The appellant has not furnished even a single piece of evidence to substantiate its stand in spite of giving sufficient opportunities. Therefore, in absence of any documentary evidences I do not find any merit in the grounds of appeal. In view of the above, the action of the AO in reopening the assessment and passing of assessment order and making an addition of Rs.30,92,000/- as investment from unexplained sources is confirmed and no relief is granted to the appellant. Accordingly, all grounds of appeal are dismissed.

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) That on the facts and in the circumstances of the case and in law, the Ld. National Faceless Appeal Centre, Delhi erred in passing the ex-parte order by confirming the addition of Rs.30,92,000/- made by the Ld. AO. 2) That on the facts and in the circumstances of the case and in law, the Ld. National Faceless Appeal Centre, Delhi erred in passing the ex-parte order without deciding following grounds of appeal raised before him on merits:

i) Assessing Officer had erred in law and not justified in reopening of cases under clause of (b) of explanation 2 of Section 147 of the Income Tax Act. ii) Assessing Officer had erred in making addition of Rs.30,92,000/-on account of purchasing of immovable property which is not an income. It is an asset which was already account in books and should be write back. iii) Assessing Officer had not justified in making addition, Notice has not served to appellant within time limit prescribed in the Act. The appellant craves leave to add, to amend or alter any of the grounds of appeal.”

3.1 The hearing in the matter took place before this

Tribunal on 16.04.2026 when the Ld. AR for & on behalf of

the Assessee appeared before us & interalia contended that

the “Impugned Order” is bad in law, illegal & not Proper. It

is in the violation of the principles of natural justice. It

therefore deserves to be set aside. It was contended that the registry has pointed out the delay of 236 days in filing the

instant second appeal. It was submitted that the Impugned

Order is dated 07.02.2025 and instant appeal ought to have

filed within the 60 days’ time frame. However the instant

appeal was filed on 22.12.2025. A condonation of delay

application along with an affidavit is placed on record.

With regard to delay it was submitted that Impugned

Order was served on email Id of tax consultant Gourav

Gupta who did not inform the assessee. Further all the

notices were served on email id of Gourav Gupta which

too was not informed by him to the assessee. Due to non-

compliances an ex-parte order was passed. The Income Tax

Department attached assessee bank account on

12.12.2025 for non-payment of tax demand. The assessee

was residing at Bareli & his office was at Bhopal. The

assessee was not in contact with Gourav Gupta as he used

to visit Bareli to collect all the documents information etc

for filling the return. Since the assessee could not contact

Gourav Gupta his friend advised him to contact another CA

who advised the assessee to file the second appeal hence there was a delay & same may please be condoned. An

affidavit dated 19.12.2025 is too placed on record in

support of condonation of delay. Per contra Ld. DR has left

the issue of condonation of delay basis wisdom of this

Tribunal. We after going through the condonation of delay

application including the affidavit & so also after hearing

both the Ld. AR & the Ld. DR are of the considered opinion

that the delay should be condoned as sufficient cause is

shown. Accordingly the delay is condoned & the appeal is

taken up for hearing.

3.2 The Ld. AR then submitted that the “Impugned Order”

of the Ld. CIT(A) is an exparte order. It was submitted that

no notices were served upon the assessee & all the notices

u/s 250 went on e-mail id of assessee’s tax consultant

(Former) who did not inform the assessee of the

proceedings.The Return of income u/s 139 was filed. ROI

u/s 148 was too filed on 09.12.2019. However no physical

notice(s) of hearing were served on the assessee. All notice(s)

went on tax consultant e-mail id who did not care to inform

the assessee. It was stated & submitted that addition is make on account of investment made in immovable property

for which the necessary explanation along with the

documentary evidences including on the sources would now

be furnished to the Ld. AO if this Tribunal deems fit to

remand the case back to the Ld. AO for fresh adjudication on

merits. Per contra the Ld. DR for the revenue submitted that

revenue has no objection if this Tribunal deems fit to remand

the matter to the Ld. AO. Thereafter a brief discussion took

place that the assessee ought to have been diligent enough to

take care of the statutory matters & a cost in this regard is

warranted in the given facts & circumstances of the case

which was quantified to Rs. 10000/- on which both the Ld.

AR & the Ld. DR were at adidem. The hearing was then over

& closed.

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 & the Ld.

DR canvassed before us, are of the considered opinion that

the “Impugned Assessment Order” though u/s 147 rws

143(3) but in para 6 of the “Impugned Assessment Order”

following is recorded which is reproduced by us as below:-

“6. Further. As per AIR information available on record, the assessee has purchase immovable property of Rs. 30,92,000/- during the F.Y. 2011-12 relevant to the A.Y. 2012-13. Vide notice u/s 142(1) of the Act, dated 29.04.2019, the assessee was Required to explain the sources of investment along with supporting documents relied upon by him in support of his claim. The assessee has not furnished any reply nor sought adjournment. Therefore, it is clear that nothing to say in the matter Shri Suresh Pathak u/s 147 144. Accordingly, an amount of Rs. 30,92,000/- is treated as unexplained sources of investment and added back to the total income of the assessee for A.Y. 2012-13 u/s 69 of the I.T. Act. Therefore, I am satisfied that the assessee has concealed particulars of its income, within the meaning of section 271(1)(c) of the Act, and therefore, penalty proceedings u/s 271(1)(c) of the Act, 1961 is initiated separately.”

From the above finding we observe that no explanation was

given to the Ld. AO by the assessee. Now the assessee

desires a final opportunity to make the necessary submissions with documents. In so far “Impugned Order” is

concerned we notice that same is an exparte one as the

assessee received the notice(s) of opportunity at the e-mail id

of his former tax consultant who turned out be careless &

negligent in not informing the assessee about the appellate

proceedings. At this stage we observe that assessee too ought

to have remained vigilant. The assessee cannot go in

slumber mode. Assessee cannot sleep over after filing the

first appeal. Be that as it may this Tribunal desires

meritorious disposal of both the “Impugned Assessment

Order” as well as the “Impugned Order” after full &

complete opportunity is given to assessee. Law equally cast

a responsibility on the part of assessee to be compliant.

Under these facts & circumstances we set aside the

“Impugned Order” as & by way of remand back to the file of

the Ld. AO on denovo basis with a direction to the assessee

to file an explanation with documents & evidences about

sources basis which investment in the immovable

property was made. The assessee to furnish all such other

details which may be sought by the Ld. AO in a time bound manner. In fact the ld. AO had issued notice(s) u/s 142(1)

on 27.03.2019, 29.04.2019, 10.07.2019, 02.08.2019,

23.10.2019 (u/s 144), 14.11.2019 (S274/RWS 271(1)(6),

11.12.2019 (S143(2) but the assessee choose to remain non-

compliant though the assessee filed ROI on 09.12.2019 for

Rs.16,46,240/- but overall has remained non-compliant on

majority of the occasions, therefore we quantify cost of

Rs.10,000/- which aspect was too debated in the hearing as

recorded supra. The Ld. AO is to adjudge & adjudicate case

only after necessary proof of payment of cost of Rs. 10000/-

is shown to him. The assessee to pay cost of Rs. 10,000/- by

a Challan in favour of income tax department. The Ld. AO to

pass a speaking & reasoned order on merits. The assessee is

directed not to seek any adjournment on any flimsy

grounds & to cooperate with department in lawful manner.

The assessee to give his correct e-mail id & of his new

counsel before denovo proceedings are taken up by the Ld.

AO.

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

As & by way of remand to the Ld. AO with directions as

aforesaid including on cost.

5 Order

In the result, “Impugned Order” is set aside as & by 5.1

way of remand back to the Ld. AO on denovo basis with

directions of aforesaid.

5.2. Appeal of assessee is allowed for statistical purpose.

Pronounced in open court on 24.04.2026.

Sd/- Sd/-

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

Indore Dated : 24/04/2026 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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