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Facts
The assessee failed to file his return of income for AY 2010-11. Based on AIR information, the AO initiated reassessment proceedings under Section 147 and completed the assessment ex-parte on a best judgment basis. The CIT(A) also dismissed the assessee's appeal ex-parte.
Held
The Tribunal held that the CIT(A) did not consider the assessee's submissions and dismissed the appeal without adjudicating the grounds on merits. The Tribunal condoned the delay in filing the appeal and set aside the impugned order, restoring the matter to the AO for fresh adjudication.
Key Issues
Whether the CIT(A) rightly dismissed the appeal ex-parte without considering the assessee's submissions, and whether the delay in filing the appeal should be condoned.
Sections Cited
148, 147, 142(1), 144, 250(6), 226(3)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI “H (SMC
Before: SHRI SAKTIJIT DEY & SHRI VIKRAM SINGH YADAV
O R D E R PER VIKRAM SINGH YADAV, A.M : This is an appeal filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals)-National Faceless Appeal Centre (NFAC), Delhi [„Ld.CIT(A)‟], dated 24-08-2023, pertaining to Assessment Year (AY) 2010-11.
The present appeal is delayed by 634 days. Along with the present appeal, the assessee has filed a condonation application, which is duly supported by an affidavit, seeking condonation of the delay in filing the present appeal. As per the assessee, the impugned order passed by the Ld.CIT(A) has still not been received by him from the Income Tax Department, and the copy of the impugned order filed with the present appeal was provided during the proceedings before the Hon‟ble High Court in the Writ Petition filed by him. Further, the assessee submitted that he attempted to log in to the Income Tax Portal. However, till date, he has no access to the Income Tax Portal as the email address and phone number mentioned in the Income Tax Portal against his PAN belong to somebody else. In this regard, the assessee has also placed on record the screenshots from the Income Tax Portal. Further, the assessee submitted that he did not receive any notice of hearing as mentioned in the impugned order. The assessee has also placed on record the various letters written by him to the Income Tax Department regarding the difficulty in accessing the Income Tax Portal. The ld Sr DR is heard who has objected to the condonation prayer and submitted that there is a substantial delay. Having considered the submissions of the assessee, which are duly supported by the documents placed on record, we are of the considered view that there was sufficient cause which prevented the assessee from filing the present appeal within the prescribed limitation period. Accordingly, the delay in filing the present appeal is condoned and we proceed to decide the appeal on the merits.
The brief facts of the case are that the assessee is an individual and for the year under consideration did not file his return of income. On the basis of the AIR information, it was revealed that the assessee has deposited cash of more than Rs. 10 lakhs during the year in a savings bank account. As the assessee did not file his return of income, accordingly notice under section 148 of the Act was issued to the assessee on 20-03-2014 and proceedings u/s. 147 of the Act were initiated. As per the AIR information, the assessee deposited Rs. 11,80,110/- in Greater Bombay Co-operative Bank and Rs. 21,10,850/- in Bank of India, during the year under consideration. In the absence of any response from the assessee pursuant to the notice issued under section 148 of the Act, statutory notices under section 142(1) of the Act and a final show cause notice were also issued to the assessee. However, the same were returned undelivered, and there was no compliance on behalf of the assessee. Accordingly, the Assessing Officer (“AO”) proceeded to complete the assessment on a best judgment basis material available on record and vide order dated 31-03-2015 passed u/s.144 read with section 147 of the Act, the whole of the deposits were brought to tax and assessed the total income of the assessee at Rs. 32,90,950/-.
The assessee thereafter carried the matter in appeal. The Ld. CIT(A), vide impugned order, dismissed the appeal filed by the assessee ex parte in the absence of any reply from the assessee in response to the notices issued during the hearing. Being aggrieved, the assessee is in appeal before us.
During the hearing, the assessee, appearing in person, submitted that notices as mentioned on page 6 of the impugned order were never served on him. It was further submitted that since the assessee did not have access to the Income Tax Portal, therefore, he had no knowledge about any of these notices being issued by the Ld.CIT(A). By referring to the communication dated 31-10-2022, on page 142 of the appeal set, the assessee submitted that the communication window with the Ld.CIT(A) was enabled only from 31-10-2022, and therefore, the claim that the notices, i.e. 16-07-2020 and 29-12-2020, were issued and served on the assessee by the Ld.CIT(A) has no basis. During the hearing, the assessee submitted that the Ld.CIT(A), prior to the migration of his appeal, filed on 28-09-2015, to the National Faceless Appeal Centre in terms of the Notification dated 08-03-2016, issued notice on 14-03-2017, forming part of the appeal set on page 127, wherein the Ld.CIT(A) specifically note that the assessee attended his office on 22-02-2017. Further, by referring to the letter dated 11-04-2018 by the Ld.CIT(A) to the ITO-24(1)(4), Mumbai, forming part of the appeal set on page Nos. 133-135, the assessee submitted that the Ld.CIT(A) sought the remand report from the AO in response to the submission dated 14-06-2017 filed by the assessee. During the hearing, the assessee also referred to his letter dated 27-10- 2021, whereby he prayed the Ld.CIT(A) to decide his appeal in the absence of the remand report from the AO, since 3 years have elapsed and no remand report has been filed by the AO despite specific direction by the Ld.CIT(A).
It was further submitted that on similar lines, the matter pertaining to AY. 2009-10 was decided ex-parte by the AO as well as by the Ld.CIT(A) and the Co-ordinate Bench of the Tribunal vide its order in dt. 21-05-2025 has set aside the matter to the file of the AO. It was accordingly submitted that on the similar lines, the matter may be set aside to the file of the AO to allow the necessary opportunity to the assessee to represent his case and furnish the necessary submissions/documentation.
The ld Sr. DR has been heard who has relied on the order of the lower authorities.
Having considered the submissions and perused the aforesaid documents as placed on record by the assessee, it is evident that the Ld.CIT(A), while passing the impugned order, has not considered any of the submissions as filed by the assessee before migration of the appeal to the National Faceless Appeal Centre. It is further evident from the perusal of the impugned order that there is no reference to the notices issued during the physical hearing and the submissions filed by the assessee. We further find that the Ld.CIT(A) has dismissed the appeal in limine filed by the assessee, placing reliance upon the decision of the Hon‟ble Supreme Court in B.N. Bhattacharjee, 118 ITR 461 (SC), merely on the basis of non- compliance with notices by the assessee without adjudicating the grounds raised by the assessee on merits, as required under section 250(6) of the Act.
From the perusal of the record, it is further evident that the assessment was also concluded on a best judgment basis under section 144 of the Act in the absence of a response/details being filed by the assessee. In view of the above, we are of the considered opinion that in the interest of justice, the assessee should be granted one more opportunity to represent its case on merits before the AO. Consequently, we deem it fit and proper to set aside the impugned order and restore the matter to the file of the AO for de novo adjudication with a direction to the assessee to furnish all the details/submissions in support of its claim. We order accordingly.
Needless to mention, no order shall be passed without affording the reasonable and adequate opportunity of hearing to the assessee. All communications to the assessee shall be directed at Goldie Sud, 191 & 192, 2nd Floor, Shaheed Bhagat Singh Colony, Andheri East, Mumbai-400 059, Mobile No. 98922 11119, Email: sudgoldie@gmail.com.
As the matter is being restored to the file of the AO for adjudication afresh, the other grievances raised by the assessee in the present appeal do not call for adjudication at this stage and are left open.
In the result, the appeal by the assessee is allowed for statistical purposes.
Since the appeal by the assessee has been decided, the stay application filed by the assessee, being S.A. No.71/Mum/2025, for the AY. 2010-11, has become infructuous and, therefore, is dismissed. As far as the assessee‟s submission in respect of the notice issued under section 226(3) of the Act, dt. 13-03-2020 is concerned, we find that the same relates to various assessment years including the assessment year 2009-10 and impugned assessment year 2010-11. As far as assessment year 2009-10 is concerned, we find that the Coordinate Bench has already directed the AO to consider the assessee‟s submissions. As far as it relates to A.Y 2010-11, we hereby direct the AO to modify the same to the extent of demand for the AY. 2010-11 is concerned as the matter is being restored to the file of the AO for adjudication afresh.
To sum-up, the appeal of the assessee is allowed for statistical purposes and the Stay Application is dismissed in light of aforesaid directions.