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Income Tax Appellate Tribunal, DELHI BENCH: ‘A’, NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI O.P. KANT
Date of hearing 08.08.2019 Date of pronouncement 03.09.2019 ORDER PER O.P. KANT, A.M.: These three appeals by the assessee are directed against three separate orders dated 15/07/2016 passed by the Ld. Commissioner of Income-tax (Appeals)-Ghaziabad [in short ‘the Ld. CIT(A)’] for assessment year 2012-13, in relation to quantum proceedings under section 143(3) of the Income-tax Act, 1961 (in short ‘the Act’), penalty proceedings under section 271(1)(c) of the Act and penalty under section 271A of the Act for not maintaining books of accounts respectively.
The grounds raised by the assessee in all the three appeals are reproduced as under:
2 5662 & 5663/Del/2016 Grounds of appeal in ITA No. 5661/Del/2016
1. That the order as passed by the Ld. CIT(A) in an ex-parte manner is wholly unjustified and illegal.
2. That without prejudice to above ground, the addition of Rs.53,61,500/- on account of unexplained investment made by the AO u/s 69 of the I.T. Act and confirmed by the Ld. CIT(A) is arbitrary, unjust, illegal and at any rate very excessive. Various observations made by the authorities below in their respective
3. That the appellant reserves her right to add, amend/modify the grounds of appeal.
1. That the order as passed by the Ld. CIT(A) in an ex-parte manner is wholly unjustified and illegal.
2. That without prejudice to above ground, the penalty of Rs.16,27,000/- as imposed by the AO u/s 271(1)(c) of I.T. Act and confirmed by the Ld. CIT(A) is arbitrary, unjust, illegal and at any rate, very excessive. Various observations made by the authorities below in their respective 3. That the appellant reserves her right to add, amend/modify the grounds of appeal. Grounds of appeal in
1. That the order as passed by the Ld. CIT(A) in an ex-parte manner is wholly unjustified and illegal.
2. That without prejudice to above ground, the penalty of Rs.25,000/- as imposed by the AO u/s 271A of I.T. Act and confirmed by the Ld. CIT(A) is arbitrary, unjust, illegal and at any rate, very excessive. Various observations made by the authorities below in their respective 3. That the appellant reserves her right to add, amend/modify the grounds of appeal.
3. At the outset, the Ld. the counsel of the assessee filed paper- book containing pages 1 to 250 and submitted that Ld. CIT(A) has 3 5662 & 5663/Del/2016 passed ex-parte orders without taking into consideration submission of the assessee. The Ld. counsel submitted that due to incorrect address mentioned by the Assessing Officer in the assessment order, the Authorised Representative of the assessee who filed appeals before the Ld. CIT(A), also repeated the same mistake of mentioning incorrect address in form No. 35, i.e., prescribed form in which appeals were filed before the Ld. CIT(A). The Ld. counsel contended that due to incorrect address, the notices issued by the Ld. CIT(A) could not be served upon the assessee and thus, the assessee could not represent before the Ld. CIT(A). The Ld. counsel submitted that the assessee is very much interested in prosecuting the appeal and thus, matter may be restored back to the file of the Ld. Assessing Officer for deciding afresh.
4. On the other hand, the Ld DR opposed request of the Ld. counsel of the assessee and submitted that the assessee did not file relevant information or produce her books of accounts even before the Assessing Officer and, therefore, the assessee does not deserve for further opportunity before either the Assessing Officer or the Ld. CIT(A). 5. We have heard rival submissions of the parties in respect of the ex-parte orders of the Ld. CIT(A) in all the three captioned Appeals. The relevant part of the appeal of the Ld. CIT(A) against quantum proceedings under section 143(3) of the Act is reproduced as under: “4. This appeal was fixed for hearing number for times, details of which are given below, but no compliance was made to any of the notices issued. All these Notices were sent to the appellant through Speed Post on the address given in the appeal petition i.e. form No. 35:
4 5662 & 5663/Del/2016 Sl. Date of Date fixed for Remark No. Notice hearing 1. 09.06.2016 16.06.2016 None attended nor application for adjournment was filed. 2. 17.06.2016 24.06.2016 None attended nor application for adjournment was filed. 3. 27.06.2016 04.07.2016 None attended nor application for adjournment was filed. 4. 06.07.2016 12.07.2016 None attended nor (Final application for Opportunity) adjournment was filed.
From the above it is clear that despite several opportunity none appeared on behalf of the appellant nor any request for adjournment has been filed before the undersigned. It seems that the appellant is not interested in prosecuting the appeal; hence the appeal filed by the appellant is liable to be dismissed for non-prosecution. In my above view, I find support from the following decisions:- (i) In the case of CIT Vs. B.N. Bhattachargee & Another 118 ITR 461 (relevant pages 477 & 478) wherein their Lordships have held that “the appeal does not mean merely filing of appeal but effectively pursuing it.” (ii) In the case of Estate of Late Tukoji Rao Holker Vs. CWT 223 IR 480 (MP) while dismissing the reference made at the instance of assessee in default made following observations in their order. “if the partly at whose instance the reference is made falls to appear at the hearing, or fails in taking steps for preparation of the paper books so as to enable hearing of the reference, this court is not bound to answer the reference. In the case of CIT Vs. Multiplan India Pvt. Ltd. 38 1TD 320 (Del). The appeal filed by the revenue before the Tribunal which was fixed hearing but on the date of hearing nobody represented the revenue applicant, nor any communication for adjournment was received. There was no communication or information as to why revenue choose to remain absent on that date. The Tribunal on the basis of inherent power treated the appeal filed by the revenue as un- admitted in view of Rule 19 of the Appellate Tribunal Rules, 1963.
Therefore, keeping in view of the above, the appeal filed by the appellant is dismissed for non-prosecution. On merits also I find that appellant has not filed any explanation or evidence in support of grounds of appeal. Therefore, addition made by the A.O. is 5.1 Thus, it is evident that the Ld. CIT(A) has dismissed the appeal against the quantum proceedings for non-prosecution by the assessee. The other two appeals have also been dismissed by the Ld. CIT(A) due to non-prosecution by the assessee with similar observations by the Ld. CIT(A). 5.2 Before us, the Ld. counsel of the assessee has submitted that the correct address of the assessee was III-F/597, 1st Floor, Sector-3, Vaishali, Gaziabad, whereas the Assessing Officer by mistake in the assessment order mentioned the flat number as ‘397’. He submitted that the Authorised Representative of the assessee, who filed appeal before the Ld. CIT(A) also committed the same mistake of mentioning the wrong address in the prescribed format for filing the appeal before the Ld. CIT(A) and therefore, the notices issued by the Ld. CIT(A) to the assessee could not be served, and thus, the assessee could not be represented before the Ld. CIT(A). On verification of the record, we find that there is a reasonable cause for non-representation by the assessee before the Ld. CIT(A) during proceedings before him and in such circumstances the assessee should not be deprived of justice. By not representing before the Ld. CIT(A), the assessee is not benefiting in any other manner. Before us, the Ld. counsel of the assessee submitted that assessee is willing to pursue the appeals and he undertakes of due representation by the assessee before the Ld. CIT(A). As per the provisions of section 251 of the Act, the Ld. CIT(A) was required to decide the appeal on merit. In view of the facts and circumstances of the case and in the interest 6 5662 & 5663/Del/2016 of the substantial justice, we feel it appropriate to set aside all the three impugned orders of the Ld. CIT(A) and restore the matter back to the Ld. CIT(A) for deciding afresh in accordance with law after affording adequate opportunity of being heard to both the parties i.e. the assessee as well as the Assessing Officer.
In the result, all the three appeals are allowed for statistical purposes. Order is pronounced in the open court on 3rd September, 2019.