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Facts
The assessee's appeal is against an order by the Ld. CIT(A) for AY 2020-21, which dismissed the appeal for non-prosecution. The assessee contended that they did not receive notices from the CIT(A) due to an incorrect email address being provided. The AO had processed the return under section 143(1)(a) and subsequently passed an assessment order under section 143(3) without making any additions.
Held
The Tribunal found that the assessee was prevented by sufficient cause from responding to the notices from the CIT(A). Therefore, in the interest of substantial justice, the CIT(A)'s order was set aside, and the matter was restored to the CIT(A)'s file for fresh adjudication.
Key Issues
Whether the CIT(A) erred in dismissing the appeal without providing adequate opportunity to the assessee to be heard, especially when the assessee claims non-receipt of notices due to an incorrect email address.
Sections Cited
143(3), 143(1), 37, 143(1)(a)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “A” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
This appeal by the assessee is directed against order dated 29.08.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2020-21, raising following grounds:
“This Appeal is against the order passed by Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi dated 29 August, 2024 disposing the assesses company's appeal against the order under section 143(3) dated 21" September, 2022 for the AV 2020-21 passed by the National e-Assessment Centre, Delhi 1. The Commissioner of Income tax (Appeals) erred in dismissing the appeal of the Appellant by drawing an inference that the assessee is not interested in pursuing the appeal 2. The Commissioner of Income-tax (Appeals) failed to appreciate that the order under section 143(3) was passed in gross violation of principles of natural justice, as the Assessing Officer failed to issue a show cause notice in respect of the additions made in the intimation under section 143(1) which were confirmed in the order under section 143(3) 3. The Commissioner of Income-tax (Appeals) failed to appreciate that the Assessing Officer had erred in considering the assessed income as per the intimation as the milestone for the computation of assessed income (in the order under section 143(3)). without granting the Appellant an opportunity of being heard.
4. The Commissioner of Income-tax (Appeals) erred in dismissing the Appellant's grounds of appeal
challenging the Assessing Officer's action of repeating the additions/disallowances in the order under section 143(3) which were additions/disallowances made vide the intimation under section 143(1) by holding that the issues raised do not emanate from the order under section 143(3) and were therefore beyond the scope of the appeal against order under section 143(3).
5. The Commissioner of Income tax (Appeals) erred in making a false statement that no reply was filed in response to the proposed adjustment letter.
6. The Commissioner of Income tax (Appeals) erred in not considering the online response filed by the Appellant in response to the proposed adjustment letter issued by CPC Bangalore.
7. The Assessing Officer erred in making an addition to the returned income in respect of liabilities which were contingent in nature and were not debited to the Profit and Loss account and therefore were never claimed by the Appellant in its Return of Income
8. The Commissioner of Income tax (Appeals) erred in confirming the additions in respect of bank guarantee amounting to Rs. 27,33,23,077 and corporate guarantee amounting to Rs. 66,88,00,000 which were never claimed by the Appellant as the amounts were contingent in nature and were disclosed in the Tax Audit report for reporting purposes only.”
The Ld. counsel for the assessee referred to the ground No. 1 of the appeal and submitted that impugned order has been passed without providing opportunity of being heard to the assessee and therefore this order might be recalled.
We have heard relevant submission of the parties with reference to the ground No. 1. We find that the Ld. CIT(A) had provided four opportunities to the assessee on 04.11.2022, 08.07.2024, 18.07.2024 and 19.08.2024 respectively, but no reply was submitted on behalf of the assessee and therefore Ld. CIT(A) adjudicated the appeal on the basis of the material available on record observing as under: “4. Decision :- I have carefully considered the grounds of appeal, statement of facts as reproduced above, and the facts appearing from the assessment order u/s 143(3) of the I. T. Act. Ground No. 9 is general in nature therefore no need for separate adjudication. Ground No. 1 to 8 culminates into one ground that relate to the disallowance of liability of Bank Guarantee of Rs. 27,33,23,077/- and Corporate Guarantee of Rs. 66,88,00,000/- being contingent in nature. 4.1. Brief facts of the case are that the appellant being a Private Limited Company has filled its return of income for the year under consideration on 04.01.2021 declaring total income at Rs. 7,31,09,500/-. The return had been processed u/s 143(1)(a) with total income of Rs. 101,52,32,580/- after disallowance of deduction claimed u/s 37 of Rs. 94,21,23,080/- by CPC. The AO at CPC found discrepancy in Income Tax Return in comparison with Audit Report for that relevant period. No response was submitted by the appellant against the proposed adjustment u/s 143(1)(a) of the I.T. Act. Consequently, the AO at CPC determined the total income at Rs. 101,51,32,580/- Subsequently, the case has been selected through CASS. The AO passed the assessment order u/s 143(3) dated: 21.09.2022 and assessed the total income at Rs. 101,52,32,580/-, However no addition has been made by the AO. Aggrieved by this order, the appellant preferred appeal before CIT(A).
4.2. It is noteworthy to keep on record that the income of Rs. 101,52,32,580/- has not been determined in the course of the proceedings u/s 143(3) of the Act, against which this appeal has been preferred by the appellant. The said income was derived in the course processing u/s 143(1)(a) only. The assessee has not made out a case where no opportunity was granted before making adjustment u/s 143(1)(a) of the I.T.Act. The notice in the course of the proceeding u/s 143(1)(a) of the I.T. Act for proposed adjustment has been properly served upon the appellant on 22.09.2021, But in response no reply had been submitted by the appellant. Moreover the assessee has not preferred any appeal against the order u/s 143(1)(a) of the Act. Taking into consideration the facts afore-stated, it is evident that the disputed disallowance has not been made in the course of the assessment proceedings u/s 143(3). Therefore, it is beyond the scope of adjudication in the present appeal. This appeal has only been preferred only against the order u/s 143(3) dated: 21.09.2022.”
The learned counsel for the assessee drew our attention to the affidavit filed before us, wherein it has been averred that the assessee did not receive any notice from the office of the learned CIT(A), primarily because the notices were not served on the email address provided in Form No. 35. The learned Departmental Representative, on the other hand, was unable to controvert the assertions made by the assessee.
In light of the affidavit and the explanation offered for the non- compliance, we are of the considered opinion that the assessee was prevented by sufficient cause from responding to the notices issued by the learned CIT(A). Accordingly, in the interest of substantial justice, we deem it appropriate to set aside the order passed by the learned CIT(A) and restore the matter to his file for adjudication afresh, after affording the assessee a reasonable opportunity to furnish the requisite documentary evidence in support of its claim.
Ground No. 1 of the assessee’s appeal is thus allowed. In view of the restoration of the appeal to the file of the learned CIT(A), we do not consider it necessary to adjudicate upon the remaining grounds raised by the assessee at this stage.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced by way of display of result on notice board under rule 34(4) of ITAT Rules, 1963 on 19/05/2025.