PRINCIPAL COMMISSIONER OF INCOME TAX - 3 vs. ASHOKJI CHANDUJI THAKOR
What did the High Court hold?
The High Court held that the impugned order passed by the Income Tax Appellate Tribunal (ITAT) was non-speaking and unreasoned. The Tribunal had restored the matter back to the file of the CIT(A) solely on the observation that it was expedient in the larger interest of justice to enable the assessee to avail an opportunity once more. The Tribunal did not assign any reasons or observe anything on the merits of the order passed by the CIT(A), nor did it consider whether the assessee had justifiable reasons for non-appearance. The Court found that the manner in which the Tribunal disposed of the appeal was not appreciable and could not be sustained. The Court noted that the assessee had been non-cooperative from the assessment stage onwards, failing to provide details to the AO and the CIT(A) despite multiple opportunities. The AO and CIT(A) had both decided the matter on merits based on the available material. Therefore, the High Court concluded that the ITAT's order suffered from arbitrariness and unreasonableness. The questions of law were answered in favour of the Revenue, and the impugned order of the ITAT was quashed and set aside, restoring the orders passed by the AO and CIT(A).
What were the facts?
A search action was conducted at the assessee's premises on September 21, 2010. A notice under Section 153A was issued for Assessment Years (AY) 2005-06 to 2010-11. The assessee filed returns declaring a total income of Rs. 81,430. During the search, cash of Rs. 10,02,940 and jewellery worth Rs. 70,400 were found, with Rs. 9,88,500 cash seized. The Assessing Officer (AO) noticed the assessee's group was involved in land transactions with unrecorded cash generation. Despite multiple opportunities and notices under Section 142(1) and 144, the assessee failed to provide details. The AO treated an investment of Rs. 5,13,883 in land as unexplained and added it to the total income, also initiating penalty proceedings under Section 271(1)(c). Similar additions were made for other AYs. The assessee appealed to the Commissioner of Income Tax (Appeals) [CIT(A)], but again failed to cooperate. The CIT(A) dismissed the appeals ex-parte, confirming the AO's additions. The assessee then appealed to the Income Tax Appellate Tribunal (ITAT), which, without assigning reasons, restored the matter to the CIT(A) for fresh adjudication in the 'larger interest of justice'. The Revenue has appealed this ITAT order.
What were the issues?
1. Whether the Appellate Tribunal erred in setting aside the order passed by the CIT(A) on the ground that the CIT(A) had not rendered any decision on merits, without appreciating that the assessee's total non-compliance, despite sufficient opportunities, left the CIT(A) with no material to decide on merits and compelled it to rely on the Assessing Officer's ex-parte findings? (Question of law) 2. Whether the Appellate Tribunal erred in setting aside the matter to the CIT(A) for fresh adjudication without considering whether there were justifiable grounds for the assessee's total non-compliance before the CIT(A) and the Assessing Officer? (Question of law) Assessee's Contention: The Tribunal remanded the matter back to the CIT(A) for deciding the controversy afresh. Therefore, no substantial question of law arises from such an order. The assessee relied on the case of Nek Ram Sharma and Co. vs. Income-Tax Appellate Tribunal (2011) 115 Taxman 636 (J&K). The appeals should be dismissed. Revenue's Contention: The Tribunal erred in setting aside the CIT(A)'s order without assigning any reasons or justification. The CIT(A) had passed a reasoned order on merits after the assessee's non-compliance. The Tribunal's order was non-speaking and unreasoned, remitting the matter casually and lightly. The Tribunal ought not to have set aside the CIT(A)'s order and restored the matter to the CIT(A) without cogent reasons. The appeals should be allowed.
Which sections of the Income-tax Act were involved?
Section 153A,Section 142(1),Section 144,Section 271(1)(c),Section 271(1)(b)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH)
As common question of law and facts arise in this group of appeals and with respect to same assessee but for different assessment years and as such arise out of the impugned common judgment and order passed by the learned Income Tax Appellate Tribunal, all these appeals are decided and disposed of by this common judgment and order.
Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Income Tax Appellate Tribunal, "A" Bench, Ahmedabad passed in Appeal being IT(SS) A No.117/AHD/2015 for AY 200506 to 201011, by which, the learned Tribunal has allowed the said appeals and without assigning any reason and without any justification has set aside the orders passed by the learned ITAT and has remitted the matter / restored the matter back to the file of the learned CIT(A), the Revenue has preferred present Tax Appeal to consider the following questions of law. "(A) Whether the Appellate Tribunal erred in setting aside the order passed by the CIT(A) on the ground that CIT(A) had not rendered any decision on merits without appreciating the fact that due to total noncompliance on part of the assessee despite granting sufficient opportunities, CIT(A) did not have any material to further dwelt upon the issue and had no choice but to frame an order based on the finding, given in the exparte order passed by the Assessing Officer? (B) Whether the Appellate Tribunal erred in setting aside the matter to CIT(A) for fresh adjudication without taking into consideration whether there were justifiable grounds for making total noncompliance by the assessee before the CIT(A) as well as the Assessing Officer? "
For the sake of convenience facts in Tax Appeal No. 710 of 2018 arising out of the impugned common judgment and order passed by the learned ITAT passed in IT(SS) A No.117/AHD/2015 for AY 200506 are narrated, which are as under:
A search action was conducted at the premises of the assessee on 21.09.2010. The notice under Section 153 A of the Act was issued to the assessee on 18.12.2012 for AY 200506 to AY 2010 11, which duly served upon the assessee. In response to the said notice, assessee filed its return of income for AY 200506 to 2010 11 on 10.01.2013. The return was income of the was filed on 10.01.2013 declaring total income at Rs.81430/. During the search at the resident of the assessee cash of Rs.10,02,940/ and a jewellery worth of Rs.70,400/ were found. That a cash of Rs.9,88,500/ was seized, it appears that during the course of search proceeding, it was noticed by the AO that Thakore Group was engaged in sale and purchase of land and the group was generating substantial cash by not fully recording transactions of sale and purchase of land. That during the assessment proceeding, notice under Section 142(1) of the Act was issued on 16.1.2013 for AY 200506 to AY 201112 requesting to submit the details called for till 23.01.2012 as the assessee failed to submit any reply thereafter. Therefore, the show cause notice for levy of penalty under Section 271(1)(b) of the Act was sent to the assessee vide notice dated 08.02.2013. That a show cause notice for completion of assessment under Section 144 of the Act was issued on 08.02.2013 requesting the assessee to submit the reply. The authorized representative of the assessee attended the office and various details, explanation of seized material and clarification was called for vide order sheet entries dated 03.01.2013, 08.02.2013 and 25.03.2013. It was noticed that no reply has been received on various queries raised except a copy of bank statement. Therefore, a final show cause under Section 142(1) of the Act for completion of assessment under Section 144 of the Act was issued on 01.03.2013 but no reply was received till 12.03.2013. Therefore, it was found that only reply submitted in the case of Thakore Group was in the case of assessee's brother. So far as assessee is concerned, despite almost 5 to 6 opportunities were given, no reply was filed. That thereafter, the AO proceeded further with to finalize the assessment proceedings under Section 144 of the Act on the basis of details available on record. That after considering the material on record, the investment on the land of Rs.5,13,883/ was treated as unexplained investment and the same was added to the total income of the assessee. That the AO also observed that penalty proceedings under Section 271(1)(c) of the Act is being initiated for submitting inaccurate particulars of income.
Similar, additions were made on unexplained investment in purchased of the land for the remaining assessment years.
Feeling aggrieved and dissatisfied with the respective assessment orders, assessee preferred appeal before the CIT(A) against the addition of unexplained investment.
Even before the learned CIT(A) also the assessee was non cooperative. Though, number of opportunities were given, nobody attended the hearing before the learned CIT(A). That final opportunity was given vide notice dated 5.12.2014 which was served upon the assessee on 08.12.2014 and the hearing was fixed on 17.12.2014. In the notice, it was specifically mentioned that "please note that this is the final opportunity and in case of non appearance and no submission of details the appeal shall be decided as per the statement of facts and material available on record", however despite the above final notice, none attended on the date of hearing. That thereafter, considering the material on record and after taking into consideration the ground on all the appeals, the learned CIT(A) dismissed the appeal / appeals.
Feeling aggrieved and dissatisfied with the order / orders passed by the learned CIT(A) confirming the additions made by the AO, the assessee preferred appeals before the learned Tribunal being Appeal Nos. IT(SS) A No.117/AHD/2015 to IT(SS) A No.122/AHD/2015. By impugned non reasoned, non speaking order, the learned Tribunal has remitted / restored the matter back to the file of the learned CIT(A) solely by observing that "we consider it expedient to restore the matter back to the file of the CIT(A) in the larger interest of justice with a view to enable the assessee to avail opportunity once more." Consequently, the learned Tribunal has set aside the order/ orders passed by the learned CIT(A).
Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Tribunal, the Revenue has preferred the present appeals to consider the following questions of law. "(A) Whether the Appellate Tribunal erred in setting aside the order passed by the CIT(A) on the ground that CIT(A) had not rendered any decision on merits without appreciating the fact that due to total noncompliance on part of the assessee despite granting sufficient opportunities, CIT(A) did not have any material to further dwelt upon the issue and had no choice but to frame an order based on the finding, given in the exparte order passed by the Assessing Officer? (B) Whether the Appellate Tribunal erred in setting aside the matter to CIT(A) for fresh adjudication without taking into consideration whether there were justifiable grounds for making total noncompliance by the assessee before the CIT(A) as well as the Assessing Officer? "
Mrs. Bhatt, learned advocate has appeared on behalf of the Revenue and Shri Vivek Chavda, learned advocate has appeared on behalf of the common assessee.
Mrs. Bhatt, learned advocate for the Revenue has vehemently submitted that impugned common judgment and order passed by the learned Tribunal suffers from unreasonableness and arbitrariness and therefore, the same deserves to be quashed and set aside.
It is vehemently submitted by Mrs. Bhatt, learned advocate for the Revenue that no reason whatsoever has been given by the learned Tribunal as to why the orders passed by the learned CIT(A) deserve to be quashed and set aside and why the matters are required to be restored back to the file of the learned CIT(A). It is vehemently submitted by Mrs. Bhatt, learned advocate for the Revenue that before AO as well as learned CIT(A) all throughout assessee was non cooperative and despite sufficient opportunity is given nobody remained present on behalf of the assessee and thereafter when the AO framed the assessment and learned CIT(A) dismissed the appeals, the same could not have been rightly interfered with by the learned Tribunal in a manner in which the learned Tribunal has dealt with the matter.
It is submitted that the learned Tribunal as such was required to consider on merits whether there were any justifiable reasons for the assessee and / or its representative not to remain present at the time of hearing and only on sufficient cause being shown, learned Tribunal by passing speaking and reasoned order remitted back the matter to the learned CIT(A).
3 It is submitted that in the present case as such no reasons whatsoever have been given by the learned Tribunal how the order passed by the learned CIT(A) is erroneous and why the matters are required to be remitted back to the file by the learned CIT(A). It is submitted that therefore, the impugned order passed by the learned CIT(A) suffers from unreasonableness, arbitrariness and non application of mind. It is submitted that the manner in which the learned Tribunal has dealt with and disposed of the appeals and has remitted the matter back to the learned CIT(A), is not justiciable at all. It is submitted that the appeals cannot be decided at the whims and the orders cannot be passed in such a manner.
It is submitted that the order passed by the learned CIT(A) would not have been set aside in such a casual manner and the matters could not have been restored back to the file of learned CIT(A) by observing that " we consider it expedient to restore the matter back to the file of the CIT(A) in the larger interest of justice". It is submitted that such remand must be backed by cogent (2011) 115 Taxman 636 (J & K). It is submitted that therefore, when it cannot be said that any substantial question of law arise. It is requested to dismiss the present appeals.
Heard the learned advocates for the respective parties at length. Perused the impugned judgment and order passed by the learned Tribunal. By impugned judgment and order passed by the learned ITAT, the Tribunal has remitted the matter back to the file of the learned CIT(A) for afresh adjudication by solely observing that ""we consider it expedient to restore the matter back to the file of the CIT(A) in the larger interest of justice with a view to enable the assessee to avail opportunity once more." No reasons whatsoever have been assigned by the learned ITAT and learned Tribunal has not at all observed anything on merits of the order passed by the learned CIT(A). Nothing is observed whether assessee was prevented from appearing before the learned CIT(A)and / or there were any justifiable reasons for the assessee not to appear before the learned CIT(A). The impugned order passed by the learned Tribunal is non speaking and unreasoned order. The manner in which, the learned Tribunal has disposed of the appeal is not at all appreciable and same cannot be sustained. Without any cogent reasons and / or justifiable reasons, the matters cannot be remitted casually and lightly. Merely by observing that that ""we consider it expedient in the larger interest of justice", a well reasoned order passed by the learned CIT(A) could not have been set aside in such a manner and the matter cannot be restored to the file by the learned CIT(A). Thus, the impugned order passed by the learned Tribunal can be said to be suffering from vice of arbitrariness, unreasonableness and therefore, interference of this Court is called for. It is true that normally High Court would not interfere with the order of remand passed by the learned Tribunal remanding the matter for fresh adjudication. However, provided the order passed by the learned Tribunal is backed by cogent reasons and does not suffer from any unreasonableness and arbitrariness like in the present case. The exercise of powers in such a manner and exercise of such appellate powers and passing the non speaking and non reasoned order and the orders which are passed by the Tribunal, which suffers from unreasonableness and arbitrariness and / or at the whims of the Tribunal not backed by any reason can be said to be pure question of law and therefore, interference of this Court is required.
It is required to be noted that in the present case right from very begging i.e. assessment proceeding, assessee was non cooperative. Number of opportunities were given by the AO, however assessee did not cooperate and even did not file any reply. Therefore, considering the material on record, the AO made addition as unexplained investment. Even before the learned CIT(A) also the assessee was non cooperative. Number of opportunities were given to the assessee to represent his case, however none remained present on behalf of assessee. Thereafter, the learned CIT(A) proceeded further with the appeal exparte and decided the appeal on merits and confirmed the order passed by the AO confirming additions of unexplained investment. Thus, even learned CIT(A) also decided the matter on merits. On going through the orders passed by the AO as well as learned CIT(A), we are of the opinion that in absence of any explanation by the assessee on the investment in question, AO was justified in making the addition of unexplained investment and thereafter learned CIT(A) was justified in confirming the same. Therefore, even the order passed by the learned CIT(A) which was on merits was not required to be interfered with by the learned CIT(A) and ought not to have been quashed and set aside without assigning any reasons. Under the circumstances, the impugned orders passed by the learned Tribunal cannot be sustained.
In view of the above and for the reasons stated above, the questions of law are answered in favour of the Revenue and against the assessee and impugned common judgment and order passed by the learned Tribunal in IT(SS) A No.117/AHD/2015 to IT(SS) A No.122/AHD/2015 is hereby quashed and set aside and the orders passed by the AO as well as learned CIT(A) are restored. All the appeals are allowed accordingly. No costs. sd/ (M.R. SHAH, J) sd. (A.Y. KOGJE, J) KAUSHIK J. RATHOD
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