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Income Tax Appellate Tribunal, MUMBAI BENCH “ A”, MUMBAI
Before: SHRI VIKAS AWASTHY & SHRI M. BALAGANESH
ORDER
PER VIKAS AWASTHY, JM:
This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi ( in short ‘the CIT(A) ’) dated 17/09/2021 for the assessment year 2012-13.
Shri C.S.Anand appearing on behalf of the assessee submitted at the outset that the CIT(A) has passed the impugned order without giving sufficient opportunity of hearing to the assessee. A perusal of the impugned order would show that the CIT(A) issued only single notice of hearing i.e. for dated 18/02/2021. Thereafter, no further notice was issued to the assessee and CIT(A) passed the impugned order on 17/09/2021.
2.1 The ld.Authorized Representative of the assessee further submitted that the assessee while filing appeal before the CIT(A) had only assailed additions on merits and the detailed grounds challenging reopening of assessment has been raised now in Second Appellate proceedings before the Tribunal. Detailed grounds were not raised before the CIT(A), although ground assailing reopening of assessment was raised. The ld.Authorized Representative of the assessee submitted that ground No.1 to 5 of the appeal before the Tribunal are additional grounds raising legal issue challenging validity of reopening the proceedings. No fresh evidences is required to be adduced for deciding this legal ground. The assessee would make his detailed submissions on the legal issue as well as on merits on the addition before the First Appellate Authority if the appeal is restored to First Appellate Authority. The ld.Authorized Representative of the assessee prayed for admission of additional grounds of appeal and restoring the appeal back to the file of CIT(A) for denovo adjudication on merits as well as considering the legal issue raised in additional grounds of appeal.
3. Per contra, Shri Manoj Sinha representing the Department vehemently defended the impugned order. The ld.Departmental Representative submitted that notice of hearing issued by CIT(A) was duly served on the assessee, despite service of notice the assessee failed to comply with the same. The ld.Departmental Representative prayed for upholding the impugned order.
We have heard the submissions made by rival sides and have perused the orders of authorities below. The assessee in ground No.1 to 5 of the appeal has assailed reopening of assessment under section 147 of the Income Tax Act, 1961 [in short ‘the Act’]. The ld.Authorized Representative of the assessee submitted that although ground No.1 to 5 of the appeal are given in grounds of appeal, however, these are additional grounds and were not raised before the CIT(A). We find that in Form No.35 the assessee has challenged reopening of assessment in ground No.1 of the appeal, however, the assessee in second appeal before the Tribunal has raised exhaustive grounds challenging initiation of proceedings under section 147 r.w.s. 148 of the Act. The additional grounds of appeal i.e. ground No.1 to 5 being legal issue are admitted for adjudication. Since, relevant documents are already on record no fresh evidence is required to be adduced on this issue. The grounds No.1 to 5 of appeal are admitted for adjudication on merits.
The ld.Authorized Representative of the assessee has pointed that the CIT(A) has passed impugned order without giving sufficient opportunity of hearing to the assessee. The assessee could not file its submissions before the CIT(A) in response to the notice dated 03/02/2021 and thereafter no further notice was issued by CIT(A). Taking into consideration entirety of facts, we deem it appropriate to restore this appeal back to the file of CIT(A) for fresh adjudication.
The CIT(A) while deciding appeal of the assessee on merits shall also consider additional grounds of appeal raised before the Tribunal i.e. grounds No.1 to 5 of the appeal on jurisdictional issue. The CIT(A) shall grant reasonable opportunity of hearing / opportunity to make submissions before deciding the appeal, in accordance with law.