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Facts
The assessee filed an appeal before the ITAT with a delay of 127 days, which was condoned. The case involved an assessment order where the assessee did not respond to notices or appear, leading to an ex-parte addition of Rs. 4,24,69,750/-. The CIT(A) upheld this addition.
Held
The Tribunal noted that the assessee contended that they were not properly served notices and thus not given an opportunity to be heard. The Tribunal, while setting aside the impugned order, remanded the case back to the CIT(A) for a fresh decision on a denovo basis, directing the assessee to pay a cost of Rs. 5000/-.
Key Issues
Whether the ex-parte assessment order was passed without providing proper opportunity of being heard to the assessee, and whether the addition made under Section 147 and Section 69A was justified.
Sections Cited
147, 144, 144B, 253, 69A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI BHAGIRATH MAL BIYANI, ACCOUNTANT & SHRI PARESH M JOSHIMEMBER
आदेश / O R D E R
Per Paresh M Joshi, J.M.:
This is an appeal filed by the assessee before this Tribunal Under Section 253 of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’ for sake of brevity) as and by way of Second appeal under the Act. The assessee is aggrieved by the order bearing Number: ITBA/NFAC/S/250/2024-5/1064364953 (1) dated 25.05.2024 of CIT(A) which is hereinafter referred to as Page 1 of 7 19 and the corresponding previous year period is from 01.04.2017 to 31.03.2018.
FACTUAL MATRIX 2.1 At the outset and threshold there is a delay of 127 days in preferring this second appeal before this Tribunal from date of impugned order which is dated 25.4.2024. The assessee in the condonation of delay application filed before us has contended that they came to know of passing of the impugned order only in the month of September, 2024 when their counsel discovered this fact in connection with proceeding for Assessment Year 2017-18 and 2020-21. Since local counsel was not well versed with the further course of action to be carried out the assessee sought legal counsel view who was situated at Indore who however advised them to file an appeal to ITAT. In the process there was a delay of 127 days for which there was no negligence and/or intentional delay on part of the assessee. Delay was genuine and bonafide and that the same should be condoned in the interest of ends of justice. The assessee has filed affidavit in Page 2 of 7 delay and so also Ld. DR for Revenue who has not seriously contested the issue of delay we condone the delay of 127 days as the assessee in condonation of delay and an affidavit has shown sufficient cause. Accordingly delay is condoned and the appeal is admitted and taken up for final hearing.
2.2 That by way of an assessment order bearing Number ITBA/ AST/S/147/2022-23/1051360325(1) dated 27.03.2023 the total income of the assessee was computed at Rs.4,24,69,750/- u/s 147 r.w.s. 144/144B of the Act which is hereinafter referred to as the “impugned assessment order”. In para 2 of the “impugned assessment order” it is stated (as observed) that seven opportunities were afforded to the assessee but no reply, response was filed by the assessee. Nobody from the assessee side appeared too. The case of the assessee was reopened on issue of cash withdrawals, amounting to Rs.4,24,69,750/- for Assessment Year 2018-19. Two show cause notices were issued to the assessee on 28.02.2023 and on 17.03.2023 which too were not responded by the assessee. The NFAC also issued a Page 3 of 7 the assessee.
2.3 Be that as it may the appeal against the impugned assessment order was preferred as an first appeal before Ld.
CIT(A), who by “impugned order” has dismissed the appeal of the assessee.
2.4 The assessee being aggrieved by the “impugned order” has filed present appeal before us and has raised following grounds of appeal against the impugned order in Form 36 which are as under:
“1. That the learned CIT(A) as well as the Ld. Assessing Officer grossly erred, both on facts and in law, in passing the ex-parte orders without giving proper and effective opportunity of being heard to the appellant.
That, without prejudice to the above, the learned CIT(A) grossly erred, both on facts and in law, in upholding the action of the Assessing Officer for determining the income of the appellant, for the relevant assessment year at Rs.4,24,69,750/- as against the returned income of Rs.Nil thereby making a huge addition of Rs.4,24,69,750/- in the appellant’s income, which is quite unjustified, unwarranted and bad in law.
That, without prejudice to the above, the learned CIT(A) grossly erred, in law, in confirming the action of the Assessing Officer in assuming the jurisdiction under s.147 of the Income Tax Act, 1961 over the case of the appellant and framing the assessment in consequence thereof.
That, without prejudice to the above, the learned CIT(A) grossly erred, in law, in confirming the action of the Assessing Officer in assuming the Page 4 of 7
Dugdh Utpadan Sahakari Samiti Maryadit AY 2018-19 jurisdiction for framing the assessment under s.147 of the Act without having any objective reason to believe as regard to excapement of any income in the hands of the appellant.
That, without prejudice to the above, the learned CIT(A) grossly erred, both on facts and in law, in upholding the addition of Rs.4,24,69,750/- made by the A.O in the appellant’s income on the allegation of unexplained cash withdrawals from the bank account of the appellant by invoking the provisions of s.69A of the Act, without properly considering and appreciating the facts and circumstances of the case.”
Record of Hearing 3.1 The hearing in the matter took place before this Tribunal on 01.04.2025 when the Ld. AR for and on the behalf of the assessee interalia contended that the “impugned order” is illegal, bad in law and not proper. It is in violation of the principle of natural justice as no notice(s) could be seen by the assessee on the portal. Had they would have seen the notice(s) dated 04.04.2024 and 16.04.2024 they would have met with the opportunities provided by Ld. CIT(A) but unfortunately no notice(s) (supra) were seen by them. It was also contended before us that even the impugned assessment order was passed without any opportunity to them. The Ld. DR for and on behalf of the revenue has not disputed the assertion of Ld. AR and left the Page 5 of 7 in accordance with law.
Observations,findings & conclusions.
4.1 We now have to decide the legality, validity and proprietary of the “Impugned Order” basis records of the case and rival contentions canvassed before us.
4.2 We have carefully perused records of the case and have examined the same. Upon examination of “impugned assessment order” we notice that a speed post intimation about opportunity was sent to the assessee but still they remained non compliant. Be that as it may now the Ld. AR has now undertakes before us that if one last opportunity is afforded to them by Ld. CIT(A) as said order is ex-parte they would appear before him and place on record of Ld. CIT(A) all papers, documents, evidences, books of accounts etc. to demonstrate the fact that assessee has good defense in law against the proposed addition.
4.3 In the premises drawn up by us, we set aside the impugned order and remand the case back to the file of CIT(A) to pass a fresh order on denovo basis. However we direct the assessee to Page 6 of 7 show the receipt of the same to the Ld. CIT(A) before he proceeds with the case.
Order 5.1 Impugned order is set aside as and by way of remand on denovo basis. Needless to state that Ld. CIT(A) to pass a reasoned order on merits of the case.
5.2 Appeal allowed for statistical purpose.
Order pronounced in open court on 04.04.2025.
Sd/- Sd/- (BHAGIRATH MAL BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER Indore िदनांक /Dated :04/04/2025 Dev/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
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