DHIRAJ GIRIDHAR MHASKE,LATUR vs. INCOME TAX OFFICER WARD 1, PUNE

Since the assessee has not filed his original return of income u/s 139(1) of the Act, the Assessing Officer had reason to believe that the assessee has failed to disclose his true source of payment to contractors and sale of motor vehicle which remained unexplained. Accordingly a show cause notice u/s 148A(b) of the Act was issued informing him regarding escapement of income as mentioned above and as to why a notice u/s 148 of the Act should not be issued. Accordingly, the order u/s 148A(d) of the Act was issued on 20.04.2022. Subsequently notice u/s 148 of the Act was issued and served on the assessee. However, the assessee did not file any response to the notice u/s 148 of the Act. The various notices issued u/s 142(1) of the Act and show cause notice u/s 144 of the Act also remained un- complied with. The Assessing Officer therefore, completed the assessment determining the total income of the assessee at Rs.1,34,62,123/-. Subsequently the Assessing Officer levied penalty of Rs.82,212/- u/s 270A, Rs.30,000/- u/s 272A(1), Rs.9,53,027/- u/s 271AAC(1). The Assessing Officer also levied penalty of Rs.1,19,381/- u/s 271B of the Act for not getting his accounts audited.

The assessee filed the appeals before the Ld. CIT(A) / NFAC. Since there was delay in filing of the appeals before the Ld. CIT(A) / NFAC, the Ld. CIT(A) / NFAC did not condone the delay and dismissed the appeals.

Aggrieved with such order of the Ld. CIT(A) / NFAC the assessee is in appeal before the Tribunal.

The Ld. Counsel for the assessee at the outset submitted that the Ld. CIT(A)/ NFAC has not issued any notice of hearing to the assessee and straightaway dismissed all the appeals for delay in filing of the same. Since the Ld. CIT(A) / NFAC has not given any opportunity, therefore, there is violation of principles of natural justice. Further, the approval from the proper competent authority was not taken by the Assessing Officer before issue of notice u/s 148 of the Act. He accordingly submitted that since the entire re-assessment proceedings are not in accordance with law, the assessment framed by the Assessing Officer should be quashed and the subsequent proceedings also should be quashed. In his alternate contention, he submitted that the matter may be restored to the file of the Ld. CIT(A) / NFAC with a direction to condone the delay and decide the appeals on merit after hearing the assessee.

The Ld. DR on the other hand drew the attention of the Bench to the continued non-compliance to the statutory notices issued by the Assessing Officer for which assessment proceedings as well as penalty proceedings were completed ex-parte. Further there was delay in filing of the appeals before the Ld. CIT(A) / NFAC for which he did not condone the delay since there was no reasonable cause explained before him. He accordingly submitted that the order of the Ld. CIT(A) / NFAC should be upheld.

We have heard the rival arguments made by both the sides, perused the orders of the Assessing Officer and Ld. CIT(A) / NFAC and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. A perusal of the order of the Ld. CIT(A) / NFAC nowhere shows that he has issued any notice of hearing to the assessee before dismissing the appeals on account of delay in filing of the appeals. A perusal of the grounds raised before the Ld. CIT(A) / NFAC shows that the assessee has also explained the reasons for such delay in filing of the appeals. Therefore, in our opinion before deciding the appeal, the Ld. CIT(A) / NFAC should have atleast given one notice of hearing to the assessee which he failed to do in the instant case. Under these circumstances and considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the above batch of 5 appeals to the file of the Ld. CIT(A)/ NFAC with a direction to grant reasonable opportunity of being heard to the assessee to substantiate the reasons for such delay in filing of the appeals and decide the issue as per fact and law. We hold and direct accordingly. The grounds raised by the assessee in all the appeals are accordingly allowed for statistical purposes.

In the result, all the appeals filed by the assessee are allowed for statistical purposes.