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Facts
The assessee challenged an ex-parte order of the CIT(A) which dismissed the appeal for non-prosecution. The assessee contended that proper opportunity was not given and notices were sent during a period when they were unwell and busy with other professional commitments.
Held
The Tribunal held that the assessee was not given a fair opportunity to be heard by the CIT(A) and that the matter should be restored to the AO for fresh adjudication.
Key Issues
Whether the CIT(A) erred in dismissing the appeal ex-parte without affording a reasonable opportunity of being heard to the assessee, thus violating principles of natural justice.
Sections Cited
143(3), 144B, 144
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 1571/JP/2024
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, vk;dj vihy la-@ITA No. 1571/JP/2024 fu/kZkj.k o"kZ@Assessment Year : 2020-21 cuke Aditya Saini Income Tax Officer, 1211 B3 Barkat Nagar, Gandhi Vs. Ward 6(2), Jaipur Nagar, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: IFVPS8965E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Sunil Morani, CA jktLo dh vksj ls@ Revenue by : Sh. Gautam Singh Choudhary, Addl. CIT lquokbZ dh rkjh[k@ Date of Hearing : 08/10/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 11/11/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM
On being aggrieved by the order of the National Faceless Appeal Centre, Delhi [ for short CIT(A)] dated 07/11/2024 the captioned assessee preferred the present appeal. The dispute relates to the assessment year 2020-21. The said order of the ld. CIT(A) arises because the assessee has challenged the assessment order dated 18.09.2022 passed under section 143(3) r.w.s 144B of the Income Tax Act, 1961 [ for short “Act”] by the Assessment Unit of Income Tax Department [ for short AO].
“1. The assessee objects to the Exparte order passed by Hon'ble Commissioner of Income Tax (Appeal) National Faceless Centre Delhi as order passed without giving proper opportunity and unreasonably shorter period notices were given in the month of September 2024 in which professional were busy in filing tax audits as well as income tax returns of audits cases shows the intention of Hon'ble CIT Appeal for passing Exparte Order and prays that the same has been passed without following the provision of law hence bad in law, without jurisdiction deserve to be annulled.
2. Assessee also object dismissal of order by Hon'ble CIT appeals without giving proper opportunity looking to the law of natural justice specially when main order passed under section 144 of the Income Tax Act 1961 without hear to the assessee and also followed by the CIT appeals.
3. Assessee reserve the right to add, alter or withdrawn of any ground of appeal
3. Apropos to the grounds so raised by the assessee the relevant finding of the ld. CIT(A), NFAC is reiterated here in below:
Findings and Decision
The appeal was taken up and notice dated 13.09.2024, 23.09.2024 and 03.10.2024 was issued to the appellant fixing hearing on 20.09.2024, 30.09.2024 and 10.10.2024. However, the appellant neither responded on that date nor any adjournment was sought. No written submission was also filed. In view of repeated ignorance of the notices, it was clear that the appellant was not interested in pursuing appeal.
5.1 By repeated non compliance and not filing any written submission, the appellant has shown that he is not interested in pursuing the appeal. In view of these facts, I have no alternative but to dismiss the appeal of the appellant for non-prosecution as it cannot be kept pending adjudication for indefinite period. It is the duty of the appellant to make necessary arrangements for effective representation on the appointed date. Mere filing of an appeal is not enough, rather it requires effective prosecution also. Therefore, the appeal is found liable for dismissal. This view is supported by the following judicial pronouncements:-
(i) CIT vs Multiplan India Ltd. 38 ITD 320(Del)
Aditya Saini vs. ITO (ii) Estate of Late Tukojirao Holkar vs. CWT 223 ITR 480 (M.P.) (iii) New Diwan Oil Mills vs. CIT (2008) 296 ITR 495 (P&H) (iv) CIT vs. B. N. Bhatachargee And Another 118 ITR 461 (SC).
5.2 The Hon'ble ITAT, Jabalpur Bench, Jabalpur in the case of M/s Bindra Warehousing Corporation, Itarsi vs ITO, and in Jabalpur Sahkari Dugdh Sangh vs ITO, to 203/Jab/2015 has found assessee as not interested in pursuing appeal on the basis of just one non-attendance before the Hon'ble Tribunal. The Tribunal has dismissed appeals for non prosecution. The Tribunal has held as follows:-
"At the time of hearing, none appeared on behalf of the assessee. The notice of hearing was sent to the assessee through RPAD, but there was no compliance on behalf of the assessee. Even no application seeking adjournment was filed. The laws aid those who are vigilant, not those who sleep upon their rights. This principle is embodied in well known dictum "VIGILANTIBUS ET NON DORMIENTIBUS JURA SUBVENIUN"
Under these circumstances, in our considered opinion assessee is not interest in prosecuting the appeal. As such we hold that this appeal is liable to be dismissed for non prosecution.”
5.3 Respectfully, following the view taken in the cases cited at para-5.1 above and the decision of Hon'ble ITAT, Jabalpur Bench, Jabalpur in the cases cited (supra), the appeal filed by the appellant is liable for dismissal for non- prosecution.
In the result, the appeal is dismissed
Aggrieved with the above order of the ld. CIT(A) thereby dismissing the appeal of the assessee the assessee preferred the present appeal. The brief facts as culled out from the records and the submission so made are that assessee is an individual and filing his Income Tax Return regularly.
Return for the Assessment Year 2020-2021 was filed on 31/08/2020 bearing acknowledgment no 509219570310820 showing Total Income of reason that large commission expenses and low net profit were declared Most of the Notices were not received by the assessee as mentioned in the order itself. Turnover of the Assessee was Rs 94,66,393/- on which profit of 5,09,400/- declared. Assessee is involve in the business manufacturing and trading of ladies kurties on line through various portal such as Amazon, Flipkart, Meesho etc. During the year on sale of Rs 94,66,393/- assessee paid Rs 29,16,316/-towards charges of online sales like Commission, Fixed Fee, Collection Fees, Marketing Fees, Logistic Charges, Delivery Service Fee, Shipping Fees, Listing Fees, Order Cancellation Fees, Refund Processing Fees, Easy Ship Weight Handling Fees, Penalties, etc. but in the Income Tax Return whole expenses shown under the head commission which is a clerical error. It is also submitted that the AO has collected information u/s 133/6) from the E Portal parties which was also not provided to the assessee to reconcile the figures and he simply mentioned the figures and ask to reconcile the figures. It was not possible to reconcile the figures without providing detailed information. Assessee has maintained proper books of accounts on the basis of which he file his Income Tax Return but no proper opportunity and details were given to explain the difference under the head Commission. Further, AO also added Rs facts as figures of commission paid by amazon Rs 6,15,730/- on the basis of which suppression of sales added is also not correct and on the basis of figure of commission sales cannot be increased. Further assessee also not provided details collected u/s 133(6) before making the assessment is also against the principles of the natural justice addition made without following the provisions of the law hence the appeal. The assessee also filed a detailed written submission which reads as follows:
Our written submission for the ground No. 1 & 2 1. In this case Ex party order was passed by Hon'ble Commissioner of Income Tax (Appeal) National Faceless Centre Delhi without giving proper opportunity and unreasonably shorter period notices were given in the month of September 2024 and at that time assessee was under the treatment of Doctor so he could not check his mails due to his illness and was mentally disturbed on account of his health issue. Here we draw your kind attention that the Assessee was under the treatment of doctor since 2022 and was also not well when these notices were sent on mails. Copy of treatment is enclosed (PB 4-8). It is also submitted that only three notices were given in the month of September 2024 in which A/R of the Assessee was also busy in conducting and filing tax audits as well as income tax returns hence A/R also could not open e-proceeding portal of assessee. Assessee is also filing an affidavit with this submission in his support (PB 9-10).
Your Hon'our ex party assessment passed without heard to the assessee is violation of Article 14 and Article 19(1)(g) of the Constitution of India.
Your Hon'our we further draw your kind attention that only three notices were given in span of twenty days was also not proper looking to the volume of demand and also against the provision of natural justice.
4. Appeal was filed on 28th January 2023 and proceeding starts after almost one and half year and order passed only after giving 3 notices on email, in 20 days of time it is also against the provisions of natural justice.
Aditya Saini vs. ITO 5. The Ld. CIT(A) has passed the order ex party without providing a fair and reasonable opportunity of being heard. It is respectfully submitted that the last notice issued by the CIT(A) did not mention that it was the final opportunity, and no further opportunity will be allowed is a lapse on account of the part of Hon'ble CIT (A). In the last notice word that this is the last opportunity must be written as in most of the cases Hon'ble CIT(A) mentioned the word that this is last notice and no further opportunity will be given, although in this case assessee could not read this notice but for the fair proceeding this word must be written.
6. Your Honour give an opportunity to the assessee as he is in a position to substantiate his case before the CIT(A). Assessee prayed for one more chance to contest the case before the Id. CIT(A) and assure your Hon'our that assessee will not seek any adjournment and remain cooperative during the course of proceedings.
Your Hon'our courts and tribunals have consistently held that:"Audi Alteram Partem" (hear the other side) is a fundamental principle of natural justice. Assessment made without providing sufficient and fair opportunity to the assessee is invalid. 8. "It is a settled position of law as laid down by the Hon'ble Rajasthan High Court in CIT v. Smt. Chitra Devi (2009) 313 ITR 174 (Raj) and by the ITAT in various judgments including Shri Ram Swaroop Soni v. ITO (ITA No. 893/JP/2019) that any assessment or appellate order passed without granting adequate and reasonable opportunity to the assessee suffers from violation of principles of natural justice and is liable to be set aside."
We rely on the following case law in support of our submission CIT v. Smt. Chitra Devi [2009] 313 ITR 174 (Rajasthan HC) In which Hon'ble The High Court held that assessment framed without granting sufficient and reasonable opportunity to the assessee is bad in law and should be set aside as the assessee was not properly heard. The court emphasized natural justice. CIT v. Smt. Sunita Singh [2008] 303 ITR 221 (Raj.) Assessment made without issuing proper notices or providing a reasonable opportunity is invalid. Violation of natural justice renders the ex-parte assessment liable to be quashed. IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHES, "SMC" JAIPUR IN ASHISH JAIN VS ITO, WARD 1(3), JAIPUR in which Hon'ble Bench restore the matter back to the file of the Id. CIT(A)
IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHES, "SMC" JAIPUR IN No.573/JP/2023 ORIENTAL BANK OF COMMERCE VS INCOME TAX OFFICER JAIPUR (TDS -2) in which Hon'ble Bench set aside the ex-party order of the Id. CIT (A) and restore the matter back to the file of the Id. CIT (A) for fresh adjudication after providing a reasonable opportunity of being heard to the assessee. IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH 'E', NEW DELHI IN ITANo. 1757/Del/2019 Nikunj Daga Deputy Commissioner of Income Tax Circle-24(2) New Delhi in which Hon'ble Bench remark that Considering the totality of the facts of the case and in the interest of justice we deem it proper to restore the issue to the file of the CIT(A) with a direction to grant one final opportunity to the assessee to substantiate his case. The assessee is also hereby directed to appear before the CIT(A) without seeking any adjournment under any pretext failing which the Ld. CIT(A) is at liberty to pass appropriate order as per law Your Hon our we request you to kindly allow our appeal and set aside the order of Hon'ble CIT Appeal.
5. To support the contention so raised in the written submission reliance was placed on the following evidence / records :
S. No. Particulars Paging
Written Submission with paper book 1-6 1-10 2. Assessment order passed by AO 11-20 3. Copy of Appeal before CIT(A) along with statement of facts and 21-28 grounds of appeal
4. Order of Hon’ble CIT(A) 29-32
5. Copy of Appeal before ITAT along with statement of facts and 33-37 grounds of appeal
6. The ld. AR of the assessee in addition to the above written submission so filed vehemently argued that the assessee as is evident from the record that though the assessee preferred the appeal before ld. CIT(A)
23.09.2024 and 03.10.2024 and thereby dismissing the appeal and such as the assessee was exparte before the ld. CIT(A) and therefore, he submitted that it would be better to set aside the matter to the file of the ld. AO so as to plead the various disallowance effective in the interest of justice as even the ld. AO has not shared the information collected behind the back.
7. The ld DR is heard who relied on the findings of the lower authorities and submitted that the assessee was given as much as three opportunities by the ld. CIT(A) and thereby he stood up upon that finding.
We have heard the rival contentions and perused the material placed on record. The bench noted that the ld. AO has collected certain information behind the back of the assessee u/s. 133(6) and thereby made the addition in the income of the assessee. The assessee when challenged the order before the ld. CIT(A) in 20 days time his appeal was dismissed. Considering that aspect of the matter ld. AR of the assessee fairly admitted that the assessee be given one chance to represent the facts of the case again before the ld. AO in the interest of justice. Against that prayer of the assessee ld. DR did not object. The bench noted that the lis between the rights could be scuttled down without providing opportunity of being heard to the assessee and the proceeding be conducted in fair manner after confronting with the material so relied upon. Hence, the matter is restored to the file of the ld. AO to decide the matter a fresh by providing an opportunity of heard to the assessee. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of set aside proceedings. Thus, the appeal of the assessee is allowed for statistical purposes.
8.1 Before parting, we may make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by AO independently in accordance with law.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 11/11/2025. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Aditya Saini vs. ITO Tk;iqj@Jaipur fnukad@Dated:- 11/11/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Aditya Saini, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward 6(2), Jaipur 3. vk;dj vk;qDr@ The ld CIT vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 1571/JP/2024) 6. vkns'kkuqlkj@ By order,
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