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Facts
The assessee filed an appeal before the CIT(Appeals) which was dismissed due to being time-barred by 353 days without sufficient cause. The assessee engaged in trading shares and derivatives and had filed a return showing a loss. The case was reopened under Section 147 due to undisclosed material facts regarding a deposit.
Held
The Tribunal held that the CIT(Appeals) dismissed the appeal ex-parte without providing sufficient opportunity of being heard, which is a violation of natural justice. Therefore, the impugned order was set aside.
Key Issues
Whether the CIT(Appeals) rightly dismissed the appeal for delay without affording sufficient opportunity to the assessee, violating principles of natural justice?
Sections Cited
143(1), 147, 148, 143(2), 142(1), 143(3), 249(3), 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘SMC’ BENCH, KOLKATA
Before: Shri Duvvuru RL Reddy, Vice-(KZ)
Assessment Year: 2012-2013 BMA Wealth Creators Academy Pvt. Ltd.,……Appellant 14/1, Paul Mansion, 6, Bishop Lefroy Road, Kolkata-700020 [PAN:AAECB2890G] -Vs.- Income Tax Officer,……………………………....Respondent Ward-12(4), Kolkata, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 Appearances by: Shri Miraz D. Shah, A.R., appeared on behalf of the assessee Shri Akhil Saxena, Sr. D.R., appeared on behalf of the Revenue Date of concluding the hearing: April 8, 2025 Date of pronouncing the order: May 26, 2025 O R D E R
The present appeal is directed at the instance of assessee against the order of ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 10th August, 2023 passed for Assessment Year 2012-13.
(A.Y. 2012-2013) BMA Wealth Creators Academy Pvt. Limited 2. The appeal is time barred by 353 days in filing the appeal by the assessee. However, Shri Ajay Kumar Singh, Director of the assessee-Company filed an affidavit dated 17th December, 2024 alongwith condonation petition saying that the assessee was not aware of the order passed by the ld. CIT(Appeals) and business operation of the assessee-company has been closed. When the assessee came to know about the order passed by the ld. CIT(Appeals) without considering the merit of the case, the assessee approached the ld. A.R. to prefer an appeal, due to that there was a delay of 353 days in filing the appeal before the Tribunal. Therefore, he pleaded to condone the delay.
Considering the facts and circumstances of the case, I am of the view that the assessee was prevented in filing the appeal within the stipulated time. Therefore, I am inclined to condone the delay of 353 days. Hence the delay is condoned.
Briefly stated the facts are that the assessee is engaged in the business of trading in shares and derivatives. The assessee filed its return of income for the AY 2012-13 showing total loss of Rs.27,02,829/-. The return was processed under section 143(1) of the Act. Further the case was reopened under section 147 with a reason that the assessee did not disclose fully or truly all material facts regarding the deposit to the tune of Rs.60 lacs out of which Rs.30 lakhs received from M/s. Anvita Real Estate Pvt. Limited, which were required to verify in its assessment. Notice under section 148 was issued to the assessee and in response, the assessee filed its return of income on 24.04.2019 at a loss of (A.Y. 2012-2013) BMA Wealth Creators Academy Pvt. Limited Rs.27,02,829/-. Thereafter notices under section 143(2) and 142(1) were issued and duly served upon the assessee asking to produce and submit certain details and documents to substantiate its return of income. The assessee did not make any response. Finally, ld. Assessing Officer issued show-cause notice to the assessee on 17.12.2019 and getting no response from the side of assessee, the ld. Assessing Officer assessed total income of the assessee at Rs.32,97,170/- after adjustment of loss of Rs.27,02,829/- as shown by the assessee in its return of income.
At the time of hearing, the ld. Counsel for the assessee argued before the Bench that the ld. CIT(Appeals) passed the ex-parte order without going into merit of the case and giving sufficient opportunity of being heard. Therefore, ld. Counsel pleaded to set aside the order passed by the ld. CIT(Appeals) and remit the matter back to the file of ld. Assessing Officer for deciding it afresh.
On the other hand, ld. Departmental Representative submitted that sufficient opportunity was being provided to the assessee but the assessee failed to submit the plausible reason for delay in filing the appeal before the ld. CIT(Appeals). Therefore, the ld. CIT(Appeals) has no other option except dismissing the appeal and he pleaded to uphold the order passed by the ld. CIT(Appeals).
Against the order passed by the Assessing Officer under section 143(3) read with section 147 of the Act, an appeal was preferred by the assessee before the ld. (A.Y. 2012-2013) BMA Wealth Creators Academy Pvt. Limited CIT(Appeals). The assessee filed the appeal on 25.01.2020 but the appeal should have been filed by 19.01.2020. For this, the assesee did not explain the reason for delay. Neither the assessee filed any documentary evidence in this regard nor filed any petition stating the reasons for condonation of delay in filing the appeal. The ld. CIT(Appeals) following the judgment of the Hon’ble Supreme Court in the case of Basawaraj & Anr. -vs.- Spl. Land Acqn. Officer in Civil Appeal No. 6974 of 2013 vide its order dated 22.08.2013 dismissed the appeal of the assessee in limine under the provisions of section 249(3) read with section 250 of the Income Tax Act as the assessee did not show any sufficient cause for delay in filing the appeal. The ld. CIT(Appeals) in his impugned order also stated that the assessee did not furnish any documentary evidence in support of its claim. Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.
I have heard both the sides and perused the material available on record. By considering the totality of the facts and circumstances of the case, I find that the ld. CIT(Appeals) proceeded to dismiss the appeal of the assessee vide his impugned order passed ex-parte without giving any further opportunity of being heard to the assessee. Keeping in view this factual position pointed out by the ld. D.R. from the impugned order of the ld. CIT(Appeals), I am of the view that proper and sufficient (A.Y. 2012-2013) BMA Wealth Creators Academy Pvt. Limited opportunity of being heard cannot be said to have been given by the ld. CIT(Appeals) to the assessee before dismissing the appeal of the assessee. There is a clear violation of principle of natural justice. I, therefore, consider it fair and proper and in the interest of justice to set aside the impugned order passed by the ld. CIT(Appeals) and remit the matter back to Assessing Officer for disposing of the appeal of the assessee afresh on merit in accordance with law after giving proper and sufficient opportunity of being heard to the assessee. The assessee is directed to make due compliance before the Assessing Officer and extend all the possible cooperation in order to enable the Assessing Officer to dispose of the appeal afresh expeditiously.
In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on 26/05/2025.