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Facts
The appeal was filed against an ex-parte order of the CIT(A) which dismissed the assessee's appeal without considering the merits. The delay in filing the appeal was due to non-communication of hearing notices to the assessee and the assessee undergoing medical treatment.
Held
The Tribunal condoned the delay in filing the appeal and restored the issue to the CIT(A) for a fresh hearing. The CIT(A) was directed to provide a reasonable opportunity to the assessee to present their case and consider additional evidences.
Key Issues
Whether the CIT(A) rightly dismissed the appeal ex-parte without proper opportunity and whether the additions made by the AO were justified.
Sections Cited
143(3), 147, 69A, 250(6)
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Income Tax Appellate Tribunal, PUNE BENCHES “B” :: PUNE
Before: DR.MANISH BORAD & MS.ASTHA CHANDRA
ORDER
PER DR. MANISH BORAD, AM:
This appeal filed by the Assessee is directed against the order of ld.Commissioner of Income Tax(Appeal)[NFAC], under [A] section 250 of the Income tax Act, 1961 dated 21.02.2024 for A.Y.2012-13. The Assessee has raised the following grounds of appeal : “1] The Ld. AO has erred in completing the assessment u/s. 143(3) r.w.s. 147 of the Act determining income at Rs.62,09,666/- as against the returned income of Rs.8,06,350/-The additions in the assessment order were completely unjustified and devoid of merits which deserves to be deleted.
21 The Ld. CIT(A)/NFAC has erred in dismissing the case ex-parte without according sufficient and proper opportunity of being heard. The Ld. CIT(A)/NFAC ought to have appreciated the appellant could not respond to notice as notices were sent on email ID of the previous tax consultant of appellant who did not intimate the appellant about issue of notice.
2.1) The Ld. CIT(A)/NFAC erred in simply dismissing the case ex- parte without even discussing the merits of the case. The matter may therefore please be set aside at appropriate level as it involves verification of evidences etc.
3] The assessment order u/s. 143(3) r.w.s. 147 of the Act is bad in law, as the same was issued without having valid DIN mentioned therein. The order issued without following mandatory procedures as laid down by CBDT in Cir. No.19/2019 is invalid & void ab- initio.
4] The Ld. AO has erred in making addition of Rs.22,50,000/- treating entire amount of advances received towards plot sale from different parties during the year under consideration as unexplained money and income of the appellant u/s. 69A of the Act without considering the facts of the case.
4.1] The Ld. AO failed to appreciate that the appellant has furnished the details of all these parties and also obtained the confirmations from these parties and therefore the same ought to have accepted. The addition has been made only on presumptions and surmises.
5) The Ld. AO erred in making addition for alleged business income of the appellant at Rs.31,48,316/- arbitrarily estimating the profit @ 10% on total deposits/credit entries in the bank account in the name of the appellant with Renukamata Credit Co-operative Society without appreciating true facts of the case.
5.1] The Ld. AO failed to appreciate that the alleged credit entries in the bank account with Renukamata Society were not incurred by the appellant and that he was not even aware about the nature and volume of the transactions incurred in his name, as the same were [A] incurred by some other beneficiaries in collusion with Renukamata Society & its staff.
5.2] The Ld. AO ought to have appreciated that the appellant was not involved into the transactions except for the small commission offered to him by staff of the Renukamata Society and accordingly, the addition if any ought to have been restricted to the amount of commission income in the hands of the appellant.
6] Without prejudice to above, alternatively the Ld. AO ought to have appreciated that there were simultaneous cash deposits and withdrawals and accordingly in view of the peak. credit theory, the addition should have been restricted to the amount of peak computed in this case and not the entire cash deposit.
7] The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal.”
The registry has informed that there is a delay of 61 days in filing of the instant appeal. An Affidavit has been filed providing reasons for the delay in filing the appeal. On going through the same, we notice that the said delay was on account of non- communication to the assessee as the notice of hearing sent on the [A] Email-id of the previous consultant who did not informed the assessee and also the assessee was going through the Medical Treatment. We find it to be a reasonable cause and condone the delay of 61 days and admit the appeal for hearing.
At the outset of hearing, ld.Counsel for the assessee submitted that the impugned order is ex-parte qua assessee, and ld.CIT(A) has not dealt into the merits of the case and also some date of hearing by ld.CIT(A)/NFAC were falling in covid-19 period and then after a long gap of three years, only one notice was issued and then the appeal has been dismissed. He, therefore, requested that the issue on merits may be restored to ld.CIT(A) for necessary adjudication.
On the other hand, the ld.DR for the Revenue supported the order of the Lower Authorities.
We have heard rival contentions and perused the record placed before us. It an admitted fact that there was no compliance by the assessee before the ld.CIT(A). As a result, assessee could not place any submissions and details in support of its grounds. The ld.CIT(A) has dismissed assessee’s appeal in limine for lack of appearance in the course of appeal proceedings.
5.1 We note that only two notices of hearing were issued by the ld.CIT(A) of which one was falling during Covid-19 period and the other one was given after lapse of three years and then immediately assessee’s appeal has been dismissed.
Under these given circumstance of the case and in the interest of justice, we deem it appropriate to provide one more opportunity to assessee and restore the issue raised on merit to ld.CIT(A) who shall afford reasonable opportunity to the assessee of proper hearing and also to consider the additional evidences if [A] any filed by the assessee and then decide in accordance with law by way of passing a speaking order as contemplated in section 250(6) of the Act. The ld.CIT(A) may call for a Remand Report from the Jurisdictional Assessing Officer of additional evidence are admitted. Assessee is also directed to remain vigilant and not to seek adjournment unless otherwise required and also to provide correct and active Email-id on the Income Tax Portal. Accordingly, grounds of appeal raised on merits are allowed for statistical purpose.