SHAKUNTALA DNYANDEV SALUNKHE,MAHARASTHRA vs. INCOME TAX OFFICER WARD -1 , ICHALKARANJI, MAHARASTHRA

Facts in brief are that the assessee is an individual who did not file return of income for the A.Y. 2012-13 under the provisions of section 139(1) of the Act. Based on the information available in NMS data that the assessee has deposited huge cash with various banks aggregating to Rs.10.21 crore, notice u/s.148 of the Act was issued to the assessee calling upon the assessee to furnish the required information relating to the assessment. Notices u/s.142(1) were also issued to the assessee to furnish the sources/explanation for the cash deposit in bank accounts. There was no compliance from the side of the assessee. In the event, ld. Assessing Officer (AO) vide order dated 26.12.2019 completed the assessment after obtaining the information from the banks by issuance of notices u/s.133(6) of the Act. While doing so, ld. AO brought to tax the said sum of Rs.10.21 crore as unexplained money/unexplained investment u/s.69A/69 of the Act.

Aggrieved assessee preferred an appeal before the ld.CIT(A) but the same was filed after the lapse of four years from the date of assessment order. The assessee claimed to have received the communication of the assessment order at a much later date and within the statutory time limit appeal was filed. However, ld.CIT(A) dismissed the appeal on account of delay in filing the appeal however he also dealt with merits of the case affirming the order of the AO.

During the course of hearing before us, Ld. Counsel for the assessee submitted that in the instant case the assessment order was passed on 26.12.2019, however, the copy of the same was received by the assessee through e-portal only on 28.11.2023 and the assessee has not received the assessment order through any other mode. The appeal before the ld.CIT(A) was filed on 06.12.2023. Therefore, there was no delay in filing the appeal as the assessee is in the knowledge of passing the order on 28.11.2023. On merits of the case, Ld. Counsel for the assessee submitted that assessee’s case could not be represented before the authorities for the reasons beyond control of the assessee which led to passing of the exparte orders. Further, it was also alleged that notices u/s.143(2)/142(1) also were not served upon the assessee and proper opportunity was not provided to the assessee before passing the orders. Therefore, a prayer is made to remit the issues to the file of ld. Jurisdictional Assessing Officer.

We have heard both the sides and perused the material on record. A perusal of the impugned order indicates that ld.CIT(A) firstly held that the appeal is barred by limitation and thereafter has summarily dealt with the merits of the case affirming the action of the AO. We also observe that the assessee in the impugned proceedings has stated that the information of the assessment order which was passed as best judgment assessment u/s.144 r.w.s.147 of the Act on 26.12.2019 was taken note on 28.11.2023. It seems that the assessee did not participate in the assessment proceedings and was unaware about the passing of the assessment order but at a later stage when the penalty proceedings were initiated for which the intimation was received on 17.11.2023 then the assessee was able to know about the passing of the assessment order. Though the details are not available as to what was the e-mail id provided by the assessee on the income-tax portal on which normally the assessment orders are e-mailed but then taking into consideration that after few months after passing of the assessment order covid-19 pandemic outbreak restrictions were put in and for almost two years have been removed out of the limitation period by the Hon’ble Apex Court in the case of Cognizance for Extension of Limitation In re (2022) 441 ITR 722 (SC). Therefore, taking liberal approach and in the larger interest of justice and also observing that the assessee may not have been communicated about the assessment order dated 26.12.2019, we deem it proper to condone the delay, if any, in filing of the appeal before ld.CIT(A). Here, we would like to make reference to a judgment passed by the Hon'ble Bombay High Court in the case of Golden Times Services Pvt. Ltd. Vs. DCIT in W.P.(C) No.402/2020, dt. 13-01-2020 wherein the Hon'ble High Court held that "A person who is aggrieved or concerned with an order would legitimately be expected to exercise his rights conferred by the provision and unless the order is communicated or is known to him, either actually or constructively, he would not be in a position to avail such a remedy". The relevant portion of the judgment is reproduced below:

In view of the settled position of law, we are of the considered opinion that there may be delay in filing of the appeal but then there is no concrete evidence placed before us about the actual date of communication of the assessment order to the assessee and therefore we deem that the assessee came to know about the assessment order only on 28.11.2023 and therefore there was no delay in filing of appeal before ld.CIT(A).

So far as the merits of the case are concerned, we find ld.CIT(A) has summarily dismissed the appeal of the assessee by affirming the action of the AO and not passing a speaking order. Considering the totality of the facts and circumstances prevailing in the instant case and submissions made by the Ld. Counsel for the assessee, we are of the considered opinion that the end of justice would meet adequately if the issues on merit are remitted back to the file of ld.CIT(A) for necessary adjudication. Assessee is directed to adduce evidence in her support as deemed expedient. Ld.CIT(A) may call for the remand report from ld. Jurisdictional Assessing Officer for the evidences and documents if any are filed by the assessee. Assessee is also directed to provide proper email id and contact detail to the department for receiving notices through ITBA portal. Assessee is further directed to remain vigilant and not to seek unnecessary adjournment unless otherwise required, failing which the ld. ld.CIT(A) is at liberty to proceed in accordance with law. Finding of ld.CIT(A) is set aside and effective grounds of appeal raised by the assessee are allowed for statistical purposes. relating to A.Y. 2016-17, facts in brief, are that the assessee has not filed the return of income u/s.139(1) of the Act. Ld. AO concluded the assessment u/s.147 r.w.s.144 of the Act after making certain additions assessed the income at Rs.1.11 crore. Aggrieved assessee preferred appeal before the ld.CIT(A) who vide impugned order dismissed the appeal in limine for non-prosecution. Now the assessee is in appeal before this Tribunal.

During the course of hearing before us, ld. Counsel for the assessee submitted that the assessee’s case for the A.Y. 2016-17 also could not be represented before the authorities for the reasons beyond control of the assessee. Given an opportunity, the assessee is now in a position to submit the relevant evidences to the satisfaction of the authorities. Therefore, a prayer is made to remit the issues on merit to the file of ld.CIT(A) for necessary adjudication.

Having heard the rival parties and perusing the record placed before us and the submissions made by the ld. Counsel for the assessee, we are of the considered opinion that ends of justice would meet adequately if the issues on merits are remitted back to the file of ld.CIT(A) for denovo adjudication as the ld.CIT(A) has not disposed of the appeal on merits as contemplated u/s.250(6) of the Act. Finding of ld.CIT(A) is set aside and effective grounds of appeal raised by the assessee are allowed for statistical purposes.

In the result, both the appeals of the assessee are allowed for statistical purposes in the terms indicated above.