SRI TEJA THEATRES,PALAKOL vs. THE INCOME TAX OFFICER, WARD-1, PALAKOL

The grounds of appeal taken by the assessee in Form No. 36 are as follows: -

Brief facts emerging from records are that, the assessee is a partnership firm has sold immovable properties vide Document No. 5063/2016 for a sale consideration of Rs.2,84,75,000/-, Document No. 5064/2016 for a sale consideration of Rs.2,88,35,000/- and Document No. 5065/2016 for a sale consideration of Rs.46,80,000/-, during the year under appeal and no return of income has been filed u/s 139 (1) , for the year under appeal. In absence of any return on record, proceedings were initiated vide notice under section 148 of the Act dated 26.03.2021 ( as per procedure ) and on the failure on the part of the assessee to file any return in compliance to such notice and also on account of non-compliance to subsequent notices issued under section 142(1) of the Act, the assessment was finally completed exparte on a total income of Rs.6.19 crores, by treating the total sales consideration arising out of the three sales document as income.

The matter carried in appeal before the Ld. First Appellate Authority has been dismissed in the absence of any compliance to various notices issued on five separate dates of hearing as evident from Page No. 7 of the Appellate Order.

Now the assessee is in appeal before the Tribunal on the grounds contained in the Memorandum of Appeal. In the course of hearing, the Ld Authorized Representative (for short “Ld.AR”) submitted that no compliance could be made in course of First Appellate Proceedings because the notice of hearing has not been issued in the e-mail ID mentioned in Form No. 35 and he referred to copy of said form placed along with the Memorandum of appeal and submitted that the e-mail ID specifically provided for receipt of communication from the appellate office in course of First Appellate Proceedings was neelamsetty9@gmail.com, but unfortunately no e-mail has been issued or served on the said e-mail ID. He further referred to Page No. 28 of the Paper Book to submit that the notices actually has been issued in the e-mail ID plnaudit@gmail.com and has furnished a copy of the screenshot taken from the portal as proof thereof. As such the Ld AR prayed that in absence of any proper notice of hearing, no representation could be caused by the assessee , before the Ld. First Appellate Authority and he prayed for a fair opportunity of hearing for submission of all documentary evidences to prove his case.

Ld. Departmental Representative (hereinafter in short “Ld. DR”) relied on the order of the Ld. CIT(A) but could not contradict the submission of the assessee and he had no objection if the matter is remanded back for fresh adjudication.

We have heard the rival submissions and considered the materials on record and we find that the notice of hearing from the Office of the First Appellate Authority has been issued on an e-mail ID which is different from the one that is mentioned in Form No. 35 and it is also not evident from the body of the Appellate Order as to how the notice of hearing has been issued and served. We also find that in absence of any representation by the assessee , the appeal could not be adjudicated on merits on the grounds contained in Form No.35.

As such, in the interest of justice, we remand the matter back to the file of Ld. First Appellate Authority for providing an opportunity of being heard to the assessee and to adjudicate on all the grounds contained in the memorandum of appeal on merits of the case and we also direct the assessee to furnish all documentary evidences and submissions in support of his contention and to prove his case forthwith and to fully cooperate in Appellate Proceedings for proper disposal of the appeal.

The assessee will be allowed reasonable opportunity of being heard and notice to be issued in the ITBA portal and also in the email ID as per Form No. 35 and also in the email of the counsel if the same is available on record.

In the result the appeal of the assessee is allowed for statistical purposes.