ANIL BHAWANI,INDORE vs. ITO - 5(1), INDORE

{
"clean_text": "आयकर अपीलीय अधिकरण, इंदौर न्यायपीठ, इंदौर\nIN THE INCOME TAX APPELLATE TRIBUNAL\nINDORE BENCH, INDORE\nBEFORE MS. SUCHITRA R. KAMBLE, JUDICIAL MEMBER\nAND\nSHRI B.M. BIYANI, ACCOUNTANT MEMBER\n\nITA No.505/Ind/2025\nAssessment Year:2015-16\n\nAnil Bhawani,\n340, Sadhu Vaswani Nagar,\nIndore\nVs.\n(Assessee/Appellant)\n\nITO 5(1)\n(Revenue/Respondent)\nIndore\n\nPAN: AGZPB7409D\n\nAssessee by Ms. Nisha Lahoti, AR\nRevenue by Shri Ashish Porwal, Sr. DR\nDate of Hearing 08.12.2025\nDate of Pronouncement 16.12.2025\n\nआदेश / ORDER\n\nPer B.M. Biyani, A.M.:\n\nFeeling aggrieved by order of first-appeal dated 30.03.2025 passed by\nlearned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)"] which\nin turn arises out of assessment-order dated 20.12.2017 passed by learned\nITO-5(4), Indore [“AO”] u/s 143(3) of Income-tax Act, 1961 [“the Act”] for\nAssessment-Year [“AY"] 2015-16, the assessee has filed this appeal on the\ngrounds mentioned in Appeal Memo (Form No. 36).\n\nAnil Bhawani\nITA No. 505/Ind/2025 - AY 2015-16\n\n2. This is the 2nd round of appeal before ITAT. The background facts\nleading to present appeal are as under:\n(i)\nThe assessee-individual filed his return of AY 2015-16 u/s 139\ndeclaring a total income of Rs. 5,24,790/-. The case was selected for\nscrutiny and the AO issued notices u/s 143(2)/142(1). Finally, the AO\ncompleted assessment vide order dated 20.12.2017 u/s 143(3) after\nmaking an addition of Rs. 1,23,03,420/- u/s 68 by disallowing\nexempted long-term capital gain u/s 10(38) claimed to have been\nearned by assessee from transactions of shares and thereby assessing\ntotal income at Rs. 1,28,28,210/-. Aggrieved, the assessee carried\nmatter in first-appeal before CIT(A) but did not get any relief. The\nassessee carried matter in next appeal to ITAT, Indore bench in ITA No.\n487/Ind/2019 wherein the ITAT, vide order dated 11/12/2019,\nremanded matter to CIT(A) for a fresh adjudication. The 1st round\nended here.\n(ii)\nPursuant to ITAT's order, the CIT(A) resumed proceedings and posted\nassessee's first-appeal for hearings but finding no response from\nassessee, the CIT(A) again dismissed assessee's first-appeal vide\nimpugned order dated 30.03.2025. Now, the assessee has again\napproached ITAT assailing the impugned order passed by CIT(A).\nAccordingly, this is 2nd round before ITAT.\n3. At first, we re-produce the impugned order passed by CIT(A):\n\nAnil Bhawani\nITA No. 505/Ind/2025 - AY 2015-16\n\nINCOME TAX DEPARTMENT\n\nभारत सरकार / GOVERNMENT OF INDIA\nवित्त मंत्रालय / MINISTRY OF FINANCE\nआयकर विभाग / INCOME TAX DEPARTMENT\nराष्ट्रीय पहचानविहीन अपील केन्द्र / NATIONAL FACELESS APPEAL CENTRE (NFAC)\nदिल्ली / DELHI\n\nTo,\nANIL BHAWANI\n340,SADHU VASWANI NAGAR INDORE\nINDORE 452001, Madhya Pradesh\nIndia\n\nPAN:\nAGZPB7409D\nAY:\n2015-16\nDATED:\n30/03/2025\nDIN & rder No:\nITBA/NFAC/S/250/2024-25/1075302143(1\n\nOrder u/s 250 r.w.s 254 of Income Tax Act, 1961\nInstituted on 14/09/2020 from the order of ITO-5(1), Indore dated 20/12/2017\n\n\n\nAppeal No\nStatus/Deductor Category\nResidential Status\nNature of Business\nSection under which the order\nappealed against was passed\nDate of Order under which the\norder appealed against was\npassed\nIncome/Loss Assessed (in Rs.)\nTax/Penalty/Fine/Interest\nDemanded (in Rs.)\nPresent for the appellant\nPresent for the Department\n\nNFAC/2014-15/10002229\nIndividual\nResident\nOthers\n143(3)\n\n20/12/2017\n0\n5567230\nNot Applicable\nNot Applicable\n\nORDER U/S 250 OF THE IT ACT\n\nThis appeal is filed u/s 246A of the Income Tax Act against the order u/s 143(3) dt\n20/12/2017. The Appeal Order date is 11/12/2019 in Appellate Order NO\n487/Ind/2019. The set aside appeal no is NFAC/2014-15/10002229. The appeal was\nset aside for carrying out some specific enquiry. The case was posted for hearing on\n3/3/2025, 19/3/2025, 31/3/2025. There is no response from the taxpayer after posting\nthe case for hearing three times. There is no basic details like - Form 35, Grounds of\n\nte:- The website address of the e-filing portal has been changed from www.incometaxindiaefiling.gov.in to www.incometax.gov.in.\n\nAnil Bhawani\nITA No. 505/Ind/2025 - AY 2015-16\n\nAGZPB7409D- ANIL BHAWANI\nΑ.Υ. 2015-16\nITBA/NFAC/S/250/2024-25/1075302143(1\n\nAppeal, Statement of facts, copy of order appealed against, demand notice etc. After\ninitiating the appeal no further action in furtherance of appeal is done by the taxpayer.\nEven at the time of initiating appeal proceedings, no document including Form 35,\nSOF, GOA was uploaded. It is understood that the taxpayer is not interested in\nprosecuting the appeal. Following the decision in the case of Ram Naresh Yadav vs\nState of Bihar AIR (SC) 1987 page 1500 where in it was held that the appeal is\ndismissed for non prosecution without even going into merits. A criminal appeal\ncannot be dismissed for non prosecution. This is a civil appeal.\n\nUnder the Faceless Scheme of disposing appeals, applicable from 25/9/21 onwards,\nno personal appearance of the Authorised Representative is required. In the case of\nMary Philomina vs IRUAYAMARY similar judgement was delivered. Considering\nthese facts the appeal is dismissed.\nII. In the event the appeal is treated as dismissed.\n\nCommissioner of Income Tax (Appeals) Unit -3,\nCoimbatore\n\nकोष मूलो दण्ड.\nCommissioner of Income-tax (Appeals)\nIncome Tax Department\n\nINCOME TAX DEPARTME\n\n4. Thus, the CIT(A) has dismissed assessee's appeal by citing the reason\nof non-response of assessee as well as mentioning that the Form No. 35,\nGround of Appeal, Statement of Facts, Copy of order appealed against,\ndemand notice, etc. were not available to him or not uploaded by assessee.\nHowever, we find that the proceedings of fresh adjudication, pursuant to\nITAT's order, have been conducted under Faceless regime whereas the\n\nAnil Bhawani\nITA No. 505/Ind/2025 - AY 2015-16\n\nproceeding of first-appeal were originally conducted in Physical regime.\nTherefore, there may be a communication gap due to transition from\nPhysical regime to Faceless regime due to which the documents might have\nnot been available to CIT(A). Further, the CIT(A) has fixed hearings of fresh\nadjudication on 03.03.2025, 19.03.2025 & 31.03.2025 within a very short\nspan of time. Therefore, the case of assessee requires revisiting by CIT(A)\nand passing a meritorious order in accordance with the mandatory provision\nof section 250(6) of the Income-tax Act, 1961 which provides “The order of\nthe Commissioner (Appeals) disposing of the appeal shall be in writing and\nshall state the points for determination, the decision thereon and the reason\nfor the decision.”. Ld. AR acknowledges that the assessee is ready and willing\nto make a proper representation before CIT(A) if an opportunity is given and\nhence prays that the present matter should be remanded to CIT(A) for an\napt adjudication in terms of section 250(6).\n\n5. Ld. DR for revenue agrees with the prayer of Ld. AR but makes a\nrequest to direct the assessee to represent his case before CIT(A) and do not\nseek unnecessary adjournments.\n\n6. In view of facts and submissions of parties as noted above and also\nhaving regard to the principle of natural justice and fair play, we remand\nthis matter back to the file of CIT(A) for adjudication afresh. The CIT(A) shall\ngive necessary opportunity of hearing to assessee and pass an appropriate\norder uninfluenced by his earlier order. The assessee is also directed to\nremain vigilant; submit Form No. 35, Grounds of Appeal, Statement of Facts\n\nAnil Bhawani\nITA No. 505/Ind/2025 - AY 2015-16\n\nand any other document required by CIT(A) and also ensure participation in\nthe hearings as may be fixed by CIT(A) and do not seek unnecessary\nadjournments failing which the CIT(A) shall be at liberty to pass appropriate\norder in accordance with law. Ordered accordingly.\n\n7. Resultantly, this appeal is allowed for statistical purpose.\n\nOrder pronounced by putting up on notice board as per Rule 34 of ITAT\nRules, 1963 on 16/12/2025\n\n \n\n \n\n(SUCHITRA R. KAMBLE)\nJUDICIAL MEMBER\n\n(B.M. BIYANI)\nACCOUNTANT MEMBER\n\nIndore\n\nदिनांक/Dated : 16/12/2025\n\nPatel/Sr. PS\n\nCopies to: (1)\n(2)\n(3)\n(4)\n(5)\n(6)\n\nThe appellant\nThe respondent\nCIT\nCIT(A)\nDepartmental Representative\nGuard File\n\nBy order\nSr. Private Secretary\nIncome Tax Appellate Tribunal\nIndore Bench, Indore\n",
"summary": {
"facts": "The assessee filed an appeal against an order of the CIT(A) which upheld an assessment order making an addition of Rs. 1,23,03,420/- by disallowing long-term capital gains. The first round of appeal to ITAT resulted in a remand to CIT(A) for fresh adjudication.",
"held": "The Tribunal held that due to the transition from physical to faceless regime, there might have been a communication gap leading to non-response from the assessee. Therefore, the case was remanded back to the CIT(A) for a fresh adjudication.",
"result": "Partly Allowed",
"sections": [
"139",
"143(2)",
"142(1)",
"143(3)",
"68",
"10(38)",
"246A",
"250(6)",
"254"
],
"issues": "Whether the CIT(A) was justified in dismissing the appeal for non-response without considering the possibility of communication gap due to transition to the faceless regime."
}
}