NASIMA FAROOK SUNDKA NASIMA YUSUF SIWANI ,BENGALURU vs. INCOME TAX OFFICER, WARD-7(2)(3), BENGALURU

The ld. DR vehemently opposed the delay in filing of the appeal stating that there is no sufficient cause shown by the assessee.

We have considered the rival contentions as well as the prayer for condonation of delay. The assessee is an individual who claims that she does not have any income according to her for which return of income is required to be filed. The assessment order was passed by the ld. AO wherein the assessee was represented by her husband. Subsequently before the CIT(A), the assessee hired an AR who filed the appeal and also owed to appear and file details before the CIT(A). He neither informed the assessee that the appellate order has been passed by the CIT(A) and also did not to make any compliance. As the assessee was saddled by huge tax liability she came to know about the same that as and when the appeal was dismissed the demand was raised. At that time, she approached the present Advocate who advised the assessee to file appeal and consequently appeal was filed which caused delay of 188 days. We find that the delay in filing of appeal has been because of counsel of assessee and unintentional. Accordingly we condone the delay and admit the appeal.

The facts of the case show that assessee is an individual, files a return of income on 30.3.2012 declaring income of Rs.4,65,330 after claiming deduction of Rs.1,85,000. This return was processed. It was selected for scrutiny by issue of notice u/s. 143(2) dated 27.7.2016 and notice u/s. 142(1) of the Act on 10.1.2017. The assessee appeared along with her husband Oomer Farooq. During the course of assessment proceedings assessee was requested to explain how the asset of Rs.1,85,62,900 in the balance sheet as on 31.3.2014 is missing from the balance sheet as at 31.3.2015. The assessee explained that it is not the balance sheet, it is the statement of affairs wherein sum of Rs.3,55,49,100 is shown as amount drawn by assessee and due to M/s. KGN International which is a wakf-ul-aulad in which assessee is one of the manager of Wakf and beneficiary also. The two properties were grouped together and shown as fixed assets in the balance sheet at Rs.3,72,49,900. Thus one of the property was reduced from that portion amounting to Rs.1,85,62,900 as it was trust property instead of assessee owned property. It was further stated that the property has not been sold or transferred to any person resulting into capital gain in the hands of assessee. It was stated that the property is of KGN International being a Wakf trust. It is a concern belonging to Omar Farook, husband of assessee and income from KGN International is assessed in his hands. Thus it was stated that assessee is one of the trustees of the said trust and there could not be any transfer from the assessee, but it was a mistake of omission of asset & liability. The AO did not appreciate the explanation of the assessee and held that sum of Rs.1,85,62,900 deserves to be taxed in the hands of assessee being the difference in the balance sheet. Accordingly addition was made.

It was also found that there is a cash deposit in the bank account of the assessee of Rs.54,40,000 and R.58,04,900 with Dhanalakshmi Bank and Indus Ind Bank. The assessee was asked to explain the cash deposit. Assessee stated that similar addition was made in the hands of assessee for AY 2014-15 which was also added in the hands of the assessee and appeal is pending before the ld. CIT(A). It was submitted that the same explanation may be considered for this year also. In the absence of any plausible explanation, the AO made the addition of Rs.1,12,44,900.

The ld. AO further found that there is no difference between the facts for AY 2014-15 and AY 2015-16 also with respect to income from house property. It was found that for AY 2014-15 above sum was considered as income from house property. After deduction, a sum of Rs.32,27,390 was added. Same addition was made in the hands of assessee.

Accordingly total income of Rs.3,36,45,392 was determined as per assessment order dated 29.12.2017.

Assessee aggrieved with the same preferred appeal before the CIT(A). The ld. CIT(A) in para 4 has stated that during the course of proceedings assessee has not complied with several notices issued and therefore last one more opportunity was granted on 16.4.2024 which was also not responded to by the assessee. Therefore the ld. CIT(A) considered several decisions where it was held that assessee is not interested in prosecution of the appeal, held that assessee’s appeal is not admissible as assessee has not made any submission. Accordingly the findings of the AO were confirmed.

Assessee aggrieved with the above appellate order preferred appeal before us. The main contention of the ld. AR is that non-appearance of the assessee before the CIT(A) was solely due to the fact that hearing notices was sent to mail id canageshssk@gmail.com which belonged to erstwhile CA. The erstwhile CA did not attend. It was stated that such is not the email id given in Form 35. He referred to Form 35 and stated that in Form 35 email id is stated to be svco1999@gmail.com . As the notices were sent to different email id and order was also sent by CIT(A), assessee could not appear before the CIT(A).

So far as the addition is concerned, it pertains to KGN International which is wakf-ul-aulad for which the appellant is one among the managers of Wakf as beneficiary also. The additions are made to the rent received of the above entity. It was stated that neither the sum of deposit in the bank account of assessee could not have been added to the income of the assessee. In view of this, it was stated that assessee did not get a fair opportunity of hearing before the CIT(A), the matter may be restored back.

The ld. DR vehemently supported the order of the ld. lower authorities and stated that before the CIT(A) also the assessee did not furnish any information as well as before the AO the assessee was totally non- compliant and evasive replies were given. Therefore there is no need to restore the matter to the file of the AO.

We have carefully considered the rival contentions and perused the orders of the ld. lower authorities. No doubt before the AO assessee did not make proper representation and therefore it has resulted into huge additions in the hands of the assessee. Further, we find that assessee has mentioned email id as svco1999@gmail.com . The assessee also stated that email id where notices must be served. However when the assessee has produced the extract of hearing notices it is apparent that the CIT(A) has sent notices to canageshssk@gmail.com . We do not find that for what reasons to this email id the CIT(A) has sent the notices. It is also not mentioned by the CIT(A) that to which address he has sent the notices. In view of the above facts, it is apparent that assessee has not been granted proper opportunity of hearing before the CIT(A). In view of this, as the only prayer is to restore the matter back to file of the CIT(A), we direct the assessee to submit the details before the CIT(A) with respect to several additions made and the ld. CIT(A) is directed to consider the explanation and grant an opportunity of hearing to the assessee. It is solely because of the reason that notices were sent by the ld. CIT(A) to another email id which was not mentioned in Form 35 and there is no reason in the appellate order also with respect to change in the email id, the assessee did not get an opportunity of hearing.

In the result, the appeal of the assessee is allowed for statistical purposes.