SHRI NITYANAND PANDEY,HOOGHLY vs. I.T.O., WARD - 23(1),, HOOGHLY

2. For that on the facts of the case, the order passed by the Ld. C.I.T.(A) without giving reasonable opportunity of hearing to the assessee which is completely arbitrary, unjustified and illegal.

3. For that on the facts of the case, the Ld. C.I.T.(A) was wrong in not considering the merit of the case, therefore, the order passed by the Ld. C.I.T. (A) is completely arbitrary, unjustified and illegal.

4. For that on the facts of the case, the impugned order is at best capable of being classified as a case of mere change of opinion, and the 148 notice dated 28.03.2018, hence, the assessment is bad in law should be quashed.

5. For that on the facts of the case, the A.O. was wrong in not issuing the Reasons recorded u/s. 148(2) of the I.T. Act, the recording of reasons for reopening of assessment and furnishing of the same has to be strictly complied with as it is a jurisdictional issue covered by Apex Court Judgement.

6. For that the reopening of assessment u/s. 148 of the I.T. Act based of reason to suspect unsustainable as A.O. failed to demonstrate live link between tangible material and formation of reason to believe that income had escaped assessment, hence the reassessment is bad-in-law.

7. For that on the facts and in the circumstances of the case, the Ld. CIT(A) was not justified in making addition of Rs. 1,86,25,000/- cash deposited in Bank which is purely business transaction, therefore, gross addition is completely arbitrary, unjustified and illegal.

8. For that on the facts of the case, the A.O. was assessment order passed merely based on report only relied upon NFMS materials but the A.O. himself has not made any independent enquiry with the Assessee's, therefore, the whole addition amounting to Rs.1,86,25,000/- is completely arbitrary, unjustified and illegal.

9. For that the charging interest u/s. 234A at Rs.4,46,400/- and u/s. 234B at Rs.38,50,200/- which are mechanically wrong and illegal.

10. For that the appellant reserves the right to adduce any further ground or grounds, if necessary, at or before the hearing of the appeal.”

3. Brief facts of the case as culled out from the order of the Ld. CIT(A) are as under: “The facts of the case are that the appellant did not originally file his return of income for the year under consideration. Based on the information on the possession of the department that the appellant had made a cash deposit of Rs. 1,86,25,000/- in his bank account during the year under I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. consideration, but did not file his return of income, a notice u/s 148 of the Act was issued by the Assessing Officer on 28.03.2018, after recording reasons and obtaining approval from competent authority. This notice was not complied with. Thereafter, a number of notices were issued from time to time, details of which are mentioned in the body of assessment order, asking the appellant to file return and also explain the source of cash deposits. However, not of the notices issued were ever complied with. Finally, the Assessing Officer issued a show-cause notice to the appellant on 22.11.2018, mentioning therein the details of notices issued and the proposed assessment to be made in case of non-compliance. However, this notice was also not responded. The Assessing Officer noted from the bank statement that the appellant had made a cash deposit of Rs. 1,86,25,000/- in the bank account of the appellant. In absence of any explanation from the appellant, the Assessing Officer held the entire amount of Rs. 1,86,25,000/- to be unexplained income and assessed the income of the appellant to that amount.”

4. Aggrieved with the assessment order, the assessee filed an appeal before the Ld. CIT(A) who issued four notices for hearing but as there was no response from the assessee, he inferred that the Ld. AO made the additions based on the available records after giving adequate opportunity to the assessee and marshalling the facts. The assessee did not produce any evidence in support of his claim or made any response against the various notices issued from time to time during the entire appellate proceedings and therefore, there was no materials before the Ld. CIT(A) to deviate from the order of the Ld. AO and in his view, the assessment order was quite in order and the same was confirmed.

5. Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal.

6. Rival contentions were heard and the submissions made have been examined. The Ld. AR submitted that the assessee could not appear either before the Ld. Assessing Officer or before the Ld. CIT(A) due to the family problems and requested that since the assessee has adequate evidence in support of the relief claimed, the matter may be I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. remanded the Ld. AO for fresh adjudication as adequate opportunity could not be availed by the assessee.

7. Though the Ld. DR relied upon the order of the Ld. CIT(A) but did not raise any serious objection if the matter is remanded to the Ld. AO.

8. We note that section 250(6) casts a duty on the Ld. CIT(A) to pass an order in appeal which should state the points for determination and a decision as well as the reason for arriving at such decision. The provisions of section 250(6) are reproduced as under: “250(6) – The order of the Commissioner (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reason for the decision.”

9. A perusal of the appellate order shows that while the Ld. CIT(A) has discussed non-compliance on the part of the assessee as the notices sent were not complied with but he has not adjudicated the appeal on merit. The Ld. CIT(A) upheld the view of the AO and has not passed a reasoned order for arriving at the decision, as is required u/s 250(6) of the Act. We further note that in Ajji Basha Vs. CIT (2019) 111 taxmann.com 348 (Madras) it has been held that a speaking order on merits with reasons and findings is to be passed by Commissioner (Appeals) on basis of ground raised in assessee's appeal; he cannot dispose assessee's appeal merely by holding that Assessing Officer's order is a self-speaking order which requires no interference. The relevant extract from the order is as under: 6. … The first respondent is the appellate authority. Needless to state that the Appellate Authority is also a fact finding authority and therefore, he has to consider the order of assessment on the grounds raised in the appeal and thereafter, pass a speaking order on merits and in accordance with law by giving his own reasons and findings as to whether the order of assessment can be sustained or not. In other words, the order passed by the Appellate Authority should explicitly exhibit his application of mind to the facts and circumstances I.T.A. No.: 2067/KOL/2024 Assessment Year: 2013-14 Shri Nityanand Pandey. and the objections raised in the grounds of appeal, also by expressing his reasons and findings in support of his conclusion.

7. In this case, the Appellate Authority, after extracting the order of the Assessing Officer in full, has not given any other reason or finding to dismiss the appeal except by stating that he is of the considered view that the Assessing Officer's order is a self speaking order and does not call for any interference. In my considered view, such single line finding of the Appellate Authority, cannot be sustained as a proper exercise of the Appellate Authority, while disposing the appeal. Therefore, it is apparent that the order impugned in this writ petition is an outcome of total non-application of mind. Consequently, the impugned order cannot be sustained. It is further contended that before passing the order, the petitioner was not heard.