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Income Tax Appellate Tribunal, “SMC”BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY
Date of Hearing – 10.12.2020 Date of Order – 28/01/2021
O R D E R Aforesaid appeal has been filed by the assessee challenging the order dated 1st March 2019, passed by the learned Commissioner of Income Tax (Appeals)–40, Mumbai, for the assessment year 2010–11.
Brief facts are, the assessee is an individual. As stated by the Assessing Officer, the assessee did not file her return of income for the impugned assessment year either under sections 139(1) or 139(4) of the Act. Whereas, he found that as per AIR information the assessee had sold an immovable property during the relevant financial year
2 Indira Vashdev Gandhi valued at ` 33 lakh and had purchased a property valued at ` 16 lakh.
On the basis of such information, the Assessing Officer re–opened the assessment under section 147 of the Act. It is alleged, in response to the notice issued under section 148 of the Act, neither any compliance was made nor the assessee appeared and participated in the assessment proceedings. Therefore, the Assessing Officer proceeded to complete the assessment ex–parte to the best of his judgment by invoking the provisions of section 144 of the Act. While doing so, he added back the sale value of the property amounting to ` 33 lakh as income from undisclosed sources and purchase value property amounting to ` 16 lakh as unexplained investment.
The assessee contested these additions by filing appeal before the first appellate authority.
In the course of hearing before the first appellate authority, the assessee filed a paper book containing additional evidences. After forwarding the evidences to the Assessing Officer and perusing the remand report furnished by him, learned Commissioner (Appeals) declined to admit the additional evidences on the ground that the assessee could not establish that the Assessing Officer had refused to accept those evidences. After rejecting the additional evidences
3 Indira Vashdev Gandhi furnished by the assessee, learned Commissioner (Appeals) dismissed the appeal.
The learned Counsel for the assessee submitted before me, the assessee is a senior citizen of 75 years old, hence, was unable to comply with the notices issued by the Assessing Officer. She submitted, though, the assessee had filed additional evidences before learned Commissioner (Appeals), they have been wrongly rejected and the issue has been decided without proper application of mind. Thus, she submitted, the issue may be restored back to the Assessing Officer for de novo adjudication which will enable the assessee to furnish all documentary evidences and substantiate her claim.
The learned Departmental Representative relied upon the observations of learned Commissioner (Appeals).
I have carefully considered the rival submissions and perused the material on record. Undisputedly, the assessment in case of the assessee was completed ex–parte under section 144 r/w section 147 of the Act. Thus, it is a fact on record that at the assessment stage the assessee, for whatever may be the reason, did not get any opportunity to substantiate her claim and rebut the allegations made against her relating to escapement of income. However, before the first appellate authority, admittedly, the assessee had furnished certain additional
4 Indira Vashdev Gandhi evidences in support of her claim. It appears from the order of the first appellate authority, the additional evidences were forwarded to the Assessing Officer for verification. However, relying upon the report of the Assessing Officer, learned Commissioner (Appeals) has declined to admit the additional evidences simply on the ground that the assessee has failed to establish that the Assessing Officer refused to admit such evidences. When the assessment has been completed ex–parte, how was it possible for the assessee to establish that the Assessing Officer has refused to admit the evidences? Having failed at the assessment stage, if the assessee wanted to furnish such evidences before the first appellate authority to establish her claim, such evidences, in my considered opinion, should not have been rejected on technical ground without verifying their authenticity. It is further evident, learned Commissioner (Appeals) has not decided the issues on merits through a well reasoned and speaking order. In view of the aforesaid, I am inclined to set aside the impugned order of learned Commissioner (Appeals) and restore the issues to the Assessing Officer for de novo adjudication after providing reasonable opportunity of hearing to the assessee. Further, it is open to the assessee to furnish all supporting evidences to substantiate her claim regarding taxability or otherwise of the escaped income. In such event, the Assessing Officer has to examine the evidences on their own merit. Further, I direct the 5 Indira Vashdev Gandhi assessee to appear before the Assessing Officer and co–operate in finalization the proceedings. Grounds are allowed for statistical purposes.
In the result, appeal is allowed for statistical purposes. Order pronounced on 28/01/2021 Sd/–
sdd/- SAKTIJIT DEY JUDICIAL MEMBER