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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
The assessee has filed the appeal against the order of the Commissioner of Income Tax (Appeals)-4, Mumbai passed u/s 143(3) and 250 of the Act.
1 The orders passed by the Assessing Officer and Ld. Commissioner of Income Tax (Appeal) 4, Mumbai vide orders dated 30.12.2008, 26.03.2010 and 30.04.2019
Shri Vikas Sharma., Mumbai. - 2 - respectively are illegal, uncalled for and against the law & facts.
The Ld. Commissioner of Income Tax (Appeal) has dismissed appeal merely on conjectures and surmires without any legal basis.
That, the Ld. Commissioner of Income Tax (Appeal)-4, Mumbai has passed an Ex-parte order and dismissed the appeal on the ground that there is delay in filing of Appeal by 4 Years whereas ITAT, Mumbai vide his order dated 06.08.2014 has directed CIT(A) to reconsider the matter in accordance with law and appeal is allowed for statistical purposes.
Even though Ld. Commissioner of Income Tax (Appeal)-4, Mumbai has dismissed the appeal without giving consideration to the directions of ITAT, Mumbai. So the order of Ld. Commissioner of Income Tax (Appeal) should be set aside and calls for fresh adjudication with CIT(A), Bathinda as present address of the appellant in PAN database is as follows:-
H. No. 46/8, Mohalla Sodian Wala, Near Sadhu Chand Chowk, Ferozepur City-152002 (Punjab)
The said address falls under the jurisdiction of Ward Ill(1), Ferozepur under Range Ill under Commissioner of Income Tax, Bathinda.
That, the Appellant has also requested the Chief Comissioner of Income Tax, Mumbai before Passing of order by Ld. Commissioner of Income Tax (Appeal)-4, Mumbai to transfer the appeal u/s 127 to CIT(A), Bathinda as present
Shri Vikas Sharma., Mumbai. - 3 - address i.e. Ferozepur City-152002, Punjab falls with Ward Ill(1), Ferozepur under Range III under Commissioner of Income Tax, Bathinda (Copy of letter is herewith enclosed)
That, the grounds of appeal raised with the Ld. 5 Commissioner of Income Tax (Appeal)-4, Mumbai is as follows:
(i) The Order passed u/s 143(3) dated 30.12.2008 accompanied with order u/s 154 dated 26.03.2010 is illegal, void and without substance.
(ii) Addition of Rs. 2011500.00 on account of Non- deduction of TDS where the payment made per person is less than Rs.20000.00 is in contradiction to the provisions of section 194J.
(iii) Total disallowance of expenses u/s 40(a)(ia) to the amount of Rs. 2011500.00 in connection to point 2 above for non-deduction of TDS is not justified. Total disallowance of expenses u/s 40(a) (ia) is not justified on the basis of latest judicial decision.
(iv) That, the Ld. Commissioner of Income Tax (Appeal)-4, Mumbai had passed order on a different ground i.e. delay in filing the appeal instead following the Honorable Tribunal order.
(v) That, the Ld. Commissioner of Income Tax (Appeal)-4, Mumbai was illegal to say in para no. VI that appeal is time barred so dismissed whereas Honorable Tribunal has in para no. VIl of his order had directed to consider the applicability of Section 40(a) (ia) only.
(vi) The order passed by the assessing officer is merely on conjectures and surmises without any legal basis.
Shri Vikas Sharma., Mumbai. - 4 - (vii) That, the appellant craves leave to amend, add, alter or delete any of the above grounds of appeal
2. On perusal of the facts, the appeal was filed by the assessee on 26-11-2019 and the case was posted for hearingon12.05.2021,6.07.2021,16.08.2021,4.10.2022, 18-11-2021,28-12-2021,31-01-2022,10-03-2022,13-4- 2022,and today i.e 25.05.2022, none appeared on dates of hearing nor any application was filed for adjournment. On considering the facts and the action of the assessee in non appearance on date of hearing. The presumption is that after filling the appeal, the assessee is not inclined /interested to prosecute the appeal. Accordingly, we heard the Ld. DR submissions and decided the appeal based on the material information available on record.
3. The brief facts of the case are that the assessee is an editor of television serials. The assessee has filed the return of income for the A.Y 2006-07 on 31.10.2006 disclosing a total income of Rs. 6,84,962/-, and the return of income was processed u/s 143(1) of the Act. Subsequently the case was selected for scrutiny under the CASS and notice u/s 143(2) and 142(1) of the Act are issued. In compliance to the Shri Vikas Sharma., Mumbai. - 5 - notice, the ld. AR of the assessee appeared from to time and submitted the details. During the assessment proceedings, the A.O found that the assessee has debited business expenses in the profit and loss account aggregating to Rs. 6,13,741/- whereas the A.O. considering personal usage element has disallowed 1/5th of the expenses of Rs. 1,22,748/.-Further the A.O. has made addition under the house property of Rs. 28,154/- and assessed the total income of Rs. 9,11,420/- and passed the order u/s 143(3) of the Act dated 30.12.2008.
4. Aggrieved by the order, the assessee has filed the appeal before the CIT(A). Whereas the CIT(A) considered the grounds of appeal, findings of the A.O and issued notice to the assessee. Since there was no compliance or any information was filed by the assessee. The CIT(A) observed that the assessee has not explained the reasons for delay or filed application for condo nation of delay in filling the appeal and dismissed the assessee appeal. Aggrieved by the CIT(A)order, the assessee has filed an appeal before the Hon’ble Tribunal.
Shri Vikas Sharma., Mumbai. - 6 -
At the time of hearing, none appeared on behalf of the assessee and the Ld.DR submitted that the Ld.CIT(A) has passed an ex parte order and relied on findings of the CIT(A).
We have heard the Ld.DR submissions and perused the material on record. Prima-facie the CIT(A) has passed the ex-parte order considering the fact that there is no appearance nor any submissions are filed by the assessee in spite of providing adequate opportunity of hearing. Therefore, the CIT(A) was of the opinion that the assessee has not explained the reasons for delay or filed application for condo nation of delay and also the assessee is not interested in prosecuting the appeal and dismissed the appeal. We on perusal of the CIT(A) order found that the Ld.CIT(A) has issued the notice but there was no response and thus the Ld.CIT(A) came to a conclusion that the assessee is not inclined to prosecute the appeal and failed to explain the delay in filling the appeal.
We find that, the assessee has raised grounds of appeal challenging the additions by the A.O. and there could be various reasons for non appearance which Shri Vikas Sharma., Mumbai. - 7 - cannot be overruled. We considering the principles of natural justice shall provide one more opportunity of hearing to the assessee to substantiate the case along with evidences and information. Accordingly, we set aside the order of the CIT(A) and remit the entire disputed issues to the file of the CIT(A) to adjudicate afresh and the assessee should be provided adequate opportunity of hearing and shall cooperate in submitting the information for early disposal of appeal and allow the grounds of appeal of the assessee for statistical purposes.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open court on 02.06.2022.