SATISH MADHUKAR KANHERKAR,AHILYANAGAR vs. ITO , WARD-2, AHILYANAGAR

There is a delay of 111 days in filing of all the appeals except in in which there is a delay of 476 days, before the Tribunal for which the assessee has filed separate condonation applications along with affidavits explaining the reasons for such delay. After considering the contents of the condonation applications filed along with the affidavits and after hearing the Ld. DR, the delay in filing of all the appeals is condoned and the appeals are admitted for adjudication.

Although a number of grounds have been raised by the assessee, however, these all relate to the ex-parte order of the Ld. CIT(A) / NFAC in confirming the addition of Rs.3,48,80,575/- made by the Assessing Officer and thereby dismissing the appeal filed by the assessee.

Facts of the case, in brief, are that the assessee is an individual and has not filed his return of income for the impugned assessment year. The case of the assessee was selected for scrutiny. Information was available with the department that the assessee has made cash deposit of Rs.3,48,80,575/- in his account maintained with Renuka Mata Multi State Urban Co-operative Credit Society Ltd. during the year under consideration and his creditworthiness is doubtful. The Assessing Officer, therefore, after recording reasons reopened the assessment u/s 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) and thereafter issued a notice u/s 148 of the Act on 22.04.2020. The assessee did not respond to the said notice. Thereafter the Assessing Officer issued notices u/s 142(1) of the Act on several dates. Since there was no response from the side of the assessee, the Assessing Officer proceeded to complete the assessment u/s 144 of the Act. Accordingly, the Assessing Officer in the order passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act made addition of Rs.3,48,80,575/- being the unexplained cash deposits.

Since there was no compliance before the Ld. CIT(A) / NFAC despite number of opportunities granted, the Ld. CIT(A) / NFAC in the ex-parte order passed by him dismissed the appeal. While doing so, he relied on the decision of Hon’ble Supreme Court in the case of CIT vs. B.N. Bhattacharjee and another reported in 118 ITR 461 (SC) and various other decisions.

Aggrieved with such order of the Ld. CIT(A) / NFAC, the assessee is in appeal before the Tribunal.

The Ld. Counsel for the assessee submitted that due to Covid period the assessee could not participate in the assessment proceedings. Further, all the tax matters were handled by the Accountant / Consultant who did not inform the assessee of the notices, therefore, the assessee could not respond to the various statutory notices issued by the office of the Ld. CIT(A) / NFAC. He submitted that in the interest of justice the assessee should be given an opportunity to substantiate his case by filing the requisite details.

The Ld. DR on the other hand heavily relied on the orders of the Assessing Officer and the Ld. CIT(A) / NFAC. He submitted that despite number of opportunities granted by the Ld. CIT(A) / NFAC, the assessee did not respond to any of the notices issued by the Ld. CIT(A) / NFAC. He accordingly submitted that the order of the Ld. CIT(A) / NFAC be upheld and the grounds raised by the assessee be dismissed.

We have heard the rival arguments made by both the sides, perused the material available on record. We find the Assessing Officer in the instant case made addition of Rs.3,48,80,575/- in the order passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act due to non-compliance by the assessee to the various statutory notices. Since the assessee did not make any submission before the Ld. CIT(A) / NFAC, he upheld the action of the Assessing Officer. It is the submission of the Ld. Counsel for the assessee that such non-compliance was not intentional but resulted due to the reasons cited above and given an opportunity the assessee is in a position to substantiate his case by filing the requisite details. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to give one final opportunity to the assessee to substantiate his case by filing the requisite details and decide the issue as per fact and law. The assessee is also hereby directed to submit the requisite details before the Assessing Officer on the appointed date without seeking any adjournment under any pretext, failing which the Assessing Officer is at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.

After hearing both the sides we find the Assessing Officer levied penalty of Rs.1,06,02,999/- u/s 271(1)(c) of the Act being the penalty @ 100% of the tax sought to be evaded. We find since the assessee did not make any submission before the Ld. CIT(A) / NFAC despite number of opportunities granted, the Ld. CIT(A) / NFAC in the ex-parte order passed by him dismissed the appeal filed by the assessee. In the preceding paragraphs while deciding the quantum appeal, we have restored the issue to the file of the Assessing Officer with a direction to adjudicate the issue afresh. Therefore, the issue of penalty levied by the Assessing Officer and confirmed by the Ld. CIT(A) / NFAC is also restored to the file of the Assessing Officer with a direction to re-adjudicate the same after completion of the assessment. The grounds raised by the assessee are accordingly allowed for statistical purposes.

After hearing both the sides we find the grounds raised by the assessee are identical to the grounds raised in and 210/PUN/2026 for assessment year 2013-14. We have already decided the issue and restored the same to the file of the Assessing Officer with a direction to decide the issue afresh after providing due opportunity of being heard to the assessee. Following similar reasonings, we restore the issues raised in all these appeals to the file of the Assessing Officer with similar directions. The grounds raised by the assessee in all these appeals are accordingly allowed for statistical purposes.

Facts of the case, in brief, are that the assessee is an individual and engaged in the business of cement, steel, fertilizers and cattle feed under the name and style of Baneshwar Traders. He has filed his return of income for the impugned assessment year on 25.09.2012 declaring total income of Rs.1,94,557/-. The case of the assessee was reopened as per the provisions of section 147. Accordingly a notice u/s 148 of the Act dated 23.03.2019 was issued in response to which the assessee filed his return of income on 30.10.2019 declaring total income of Rs.1,94,560/-. The Assessing Officer completed the assessment u/s 143(3) r.w.s. 147 on 01.11.2019 and made addition of Rs.16,20,009/- being the difference between the turnover declared of Rs.28,07,146/- and the amount reflected in the bank statement of Rs.1,65,59,353/-. The Assessing Officer also made another addition of Rs.6,87,610/- u/s 69 of the Act. Thus, he made total addition of Rs.23,07,619/- to the returned income and determined the total income of the assessee at Rs.25,02,180/-. Thereafter, the Assessing Officer levied penalty of Rs.6,20,734/- u/s 271(1)(c) of the Act and also levied penalty of Rs.82,796/- u/s 271B of the Act.

Since the assessee did not make any submission before the Ld. CIT(A) / NFAC, he confirmed the penalty determined by the Assessing Officer in the ex- parte order passed by him.

Aggrieved with such orders of the Ld. CIT(A) / NFAC the assessee is in appeal before the Tribunal.

The Ld. Counsel for the assessee submitted that the quantum appeal of the assessee for assessment year 2012-13 is pending before the Tribunal.

Since the quantum appeal of the assessee for assessment year 2012-13 is pending before this Tribunal, we deem it proper to restore the issues raised in both these appeals to the file of the Assessing Officer to adjudicate the issues afresh as per fact and law once the quantum appeal is decided by the Tribunal. Needless to say the Assessing Officer shall provide due opportunity of being heard to the assessee while deciding the issue. The grounds raised by the assessee in both the appeals are accordingly allowed for statistical purposes.

In the result, all the 10 appeals filed by the assessee are allowed for statistical purposes.