TUKARAM VINAYAK ,MUMBAI vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1, THANE

4. The AO erred in relying on material / statements without providing an opportunity to rebut such material or cross examine such persons whose statements are used against the assessee; 3.5. The CIT(A) / AO failed to appreciate that the assessee does not maintain books of accounts and in the absence of the same, there is no question of applying the provisions of section 69 of the Act; 4. The above grounds/sub grounds of appeal are without prejudice to each other; 5. The appellant craves the leave to add, amend or alter all or any of the grounds of appeal.” 2. At the outset, the Ld.AR submitted that, there was delay of 381 days in filing appeal before Ld.CIT(A). The appeal was dismissed by NFAC/CIT(A) for non-prosecution. The assessee has filed before this Tribunal affidavit, to explain the delay caused in filing appeal before the Ld.CIT(A). The affidavit is scanned and reproduced as under:

The Ld.AR prayed that the delay in filing the appeal may be condoned and the assessee may be granted an opportunity of being heard on merit. 4. On the contrary, the Ld.DR submitted that, assessee did not appear for the assessment proceedings. He submitted that, all notices were issued to the email ID mentioned in the portal of the assessee and therefore has not satisfactorily explained the delay caused in filing the appeal before Ld.CIT(A). He thus submitted that the appeal is rightly dismissed by not condoning the delay. I have perused the submissions advanced by both sides in the light of records placed before me. 5. It is noted that, the assessee is a salaried person and has offered to tax income under the head salary and capital gains and other sources during the year under consideration. Based on an inside portal information, it was noted that assessee carried out certain sale and purchase of listed equity shares through a broker Motilal Oswal financial services Ltd., and incurred short- term capital loss on equity share transactions. The assessee also carried out future options transaction through same broker and earned profit. The Ld.AO accepted these transactions as they were disclosed in the returns filed for the year under consideration. 5.1 The Ld.AO however noted that, assessee also entered into purchase of immovable properties that required necessary verification. The Ld.AO was of the view that assessee invested unexplained cash and the same was added under section 69 of the act.

It is noted that several notices were issued to the assessee against which there was no compliance. In Form 35 assessee has provided his personal email ID for communicating the notices. In the application for condonation of delay filed before the Ld.CIT(A), the assessee stated that he was not aware whether the notices were sent through email or message as assessee had given email ID of both the tax consultant and himself to the Department on Income tax portal. 7. Thereafter though the appeal was filed belatedly notices were issued to the assessee on various dates by the Ld.CIT(A) which was further not complied with. I therefore do not find any justification in the reasons mentioned by the assessee for the delay caused in filing appeal before the Ld.CIT(A) and also for not appearing before the Ld. CIT(A) against the notices issued. 8. However considering the fact that justice has to meet its end, I am of the opinion that the appeal is to be remanded to the Ld.AO subject to payment of cost of Rs.30,000/- which is accepted by the assessee through Ld.AR. I direct the cost to be paid to the Prime Minister’s relief fund and an affidavit of the same may be filed before the Ld.AO showing the acknowledgement of the payment made. The assessee is directed to take due note of the notices issued and to respond to the same without any delay. The Ld.AO is directed to consider the issue on merits de novo and to pass detailed order on merits in accordance with law. Needless to say that proper opportunity of being heard must be granted to the assessee. Accordingly, the grounds raised by the assessee stands partly allowed for statistical purposes.