NILESH RAMESHCHANDRA SARVAIYA,MUMBAI vs. ITO WARD 23(2)(6), MUMBAI, MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRY & SHRI OMKARESHWAR CHIDARAAssessment Year: 2018-19
Per : Narender Kumar Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated 28.03.2025, impugned herein, passed by the National
Faceless Appeal Center (NFAC)/ Ld. Commissioner of Income Tax
(Appeals) (in short Ld. Commissioner) u/s 250 of the Income Tax
Act, 1961 (in short ‘the Act’) for the A.Y. 2018-19. 2. In this case, the Assessing Officer (AO) vide assessment order dated 23.04.2021 u/s 144 r.w.s. 144B of the Act, has made the additions of Rs.5,00,000/- on account of unexplained investment u/s 69 of the Act and Rs.45,91,500/- on account of income from other sources u/s 56(2)(x) of the Act.
Mr. Nilesh Rameshchandra Sarvaiya
The Assessee though challenged the said additions before the Ld. Commissioner, however, as per impugned order, did not file any response to the notice issued by the Ld. Commissioner and therefore the Ld. Commissioner by observing that in the absence of any documentary evidence appeal cannot be decided on its merits, dismissed the appeal of the Assessee.
The Assessee, being aggrieved, challenged the impugned order.
The Ld. Counsel for the Assessee at the outset has drawn our attention to the impugned order and claimed that though the Ld. Commissioner has decided the appeal filed by the Assessee for non- prosecution and in limine but not on merit and therefore has violated the judgment of Hon’ble Juri ictional High Court in the case of Commissioner of Income Tax Vs. Premkumar Arjundas (HUF) ITA No.2336 of 2013 dated 25.04.2016 (2017) 297 CTR (Bom.) 614, wherein it has been held under:
“That this is amply clear from section 251(1)(a) & (b) and explanation 2 to section 251(2) of the Act, which requires CIT(A) to apply hi- mind to all the issues, which arise from the impugned order before him, whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower
CIT(A) to dismiss the appeal for non-prosecution, as it is evident from the provisions of the Act”.
The Assessee further by drawing out attention to From no. 35 has submitted that even otherwise, in reply to the question “whether notices/communication may be sent on email”, the Assessee specifically replied “No” but still no communication was sent by the Ld. Commissioner in physical form, therefore, the Ld. Commissioner not only violated the principle of natural justice but Mr. Nilesh Rameshchandra Sarvaiya
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also the condition enshrined in Form no.35. The Assessee further submitted that even from the notices issued by the Ld.
Commissioner it appears that the same were sent to the email of the erstwhile CA of the Assessee but not of the Assessee. And thus, the Assessee did not get proper opportunity of being heard and therefore the impugned order may be set aside.
On the contrary, the Ld. DR refuted the claim of the Assessee by supporting the orders passed by the Authorities below.
Having heard the parties and giving thoughtful consideration to the rival claim of the parties and perusing the material available on record, we observe that the contentions raised by the Assessee to the effect that he did not get proper opportunity of being heard, seems to be plausible and thus considering the said aspect and other aspect as well that the Ld. Commissioner also failed to decide the appeal on merit, we are inclined to set aside the impugned order, however, considering the issue involved and the peculiar fact that the assessment order has been passed during Covid-19 period when the entire nation was on hold, we are remanding the instant case to the file of the Juri ictional Assessing Officer (JAO) for decision afresh, suffice to say by affording reasonable opportunity of being heard to the Assessee.
We also direct the Assessee to comply with the notices to be issued by the JAO and file the relevant submissions and documents, which would be essentially required for proper and decision of the case. We clarify that in case of subsequent default, the Assessee shall not be entitled for any leniency. Mr. Nilesh Rameshchandra Sarvaiya
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10. In the result, the Assessee’s appeal is allowed for statistical purposes.
Order pronounced in the open court on 29.08.2025. (OMKARESHWAR CHIDARA) (NARENDER KUMAR CHOUDHRY)
ACCOUNTANT MEMBER JUDICIAL MEMBER
* Kishore, Sr. P.S.
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The DR Concerned Bench
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By Order
Dy/Asstt.