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Facts
The assessee's appeal was delayed by 97 days due to notices being sent to a wrong email address, making them unaware of the proceedings. The Assessing Officer reopened the case and made an addition of Rs. 36,94,736/- under section 69A as unexplained money, which was confirmed by the CIT(A) ex-parte. The assessee argued that they did not receive proper notices from the lower authorities.
Held
The Tribunal found that the assessee was unaware of the proceedings due to notices being sent to an incorrect email address, which constituted a sufficient cause for the delay. The principles of natural justice require a sufficient opportunity for the affected party to be heard.
Key Issues
Whether the CIT(A) erred in passing an ex-parte order without providing a reasonable opportunity of hearing to the assessee, and whether the delay in filing the appeal should be condoned.
Sections Cited
250, 144, 147, 148, 69A, 142(1), 44AD
AI-generated summary — verify with the full judgment below
Before: SHRI DINESH MOHAN SINHA & SHRI BIJAYANANDA PRUSETH
आदेश / O R D E R
PER BIJAYANANDA PRUSETH, AM:
This appeal by the assessee emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’), dated 30.11.2024 by the National Faceless Appeal Centre, Delhi/ Commissioner of Income-tax (Appeals) [in short, ‘CIT(A)’] for the assessment year (AY) 2012-13, which in turn arises out of assessment order passed by Assessing Officer (in short, ‘AO’) u/s 144 r.w.s 147 of the Act dated 22.10.2019.
Grounds of appeal
raised by the assessee are as under:
1. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals), NFAC has erred in passing ex-parte order u/s 144 without giving reasonable opportunity of hearing to assessee.
2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals), NFAC has erred in confirming the action of the Assessing Officer in reopening assessment by issuing notice u/s 148 of the I.T. Act, 1961.
3. On the facts and in the circumstances of the case as well in law, the CIT(Appeals), NFAC, has erred in confirming the action of Assessing Office in passing ex-parte order u/s 144 of the I.T. Act, 1961.
On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals), NFAC has erred in confirming the action of Assessing Office in making addition of Rs.36,94,736/- under section 69A of the I.T. Act as unexplained money.
5. It is therefore prayed that above addition made by Assessing Officer and confirmed by Commissioner of Income-tax (Appeals), NFAC may please be deleted.
6. Appellant craves leave to add, alter, or delete any ground(s) either before or in the course of hearing of appeal.”
3. In the instant case, appeal filed by the assessee is delayed by 97 days. The assessee has filed an affidavit for condonation of delay in filing of appeal before this Tribunal. In the affidavit, it has been stated that neither the notice of hearing nor the appellate order was sent in the given e-mail address in Form-35. The assessee was, therefore, unaware of dismissal of appeal by CIT(A), NFAC, Delhi. Subsequently, when he came to know about the CIT(A)’s order, he immediately downloaded the same and filed appeal before this Tribunal. The assessee submitted that the delay in filing appeal was neither wilful nor deliberate, but due to the circumstances beyond his control. He requested that in the interest of justice, the delay may be condoned and appeal may be decided on merit.
A.Y 12-13 Shailesh D Padmani 4. On the other hand, Ld.Sr. DR for the Revenue opposed the prayer of the assessee for condonation of delay. He, however, submitted that the Bench may decide the issue as it thinks fit.
We have heard both parties on this preliminary issue of condonation of delay. In the affidavit, it is submitted by the assessee that all notices issued by CIT(A) were sent on some wrong email id. Only after enquiry with the previous tax consultant, assessee could know fate of appeal, due to which a small delay of 97 days has occurred in filing appeal before the Tribunal. Considering these facts, we find that the assessee was unaware of the proceedings due to which he was unable to file appeal before the Tribunal in time. Hence, the reasons given in the affidavit for condonation of delay would constitute sufficient cause for delay in filing this appeal. We, therefore, condone the delay and admit the appeal for hearing, in the interest of justice.
Facts of the case, in brief, are that assessee filed his return of income on 16.10.2012 declaring income of Rs.2,29,630/- for AY 2012-13. The assessee has shown gross turnover of Rs.3,88,558/- as presumptive income u/s 44AD of Rs.3,02,146/-. The case was reopened by issue of notice u/s 148 of the Act on 31.03.2019 after obtaining approval from the competent authority. However, the assessee did not file any return in response to notice u/s 148 of the Act.
A.Y 12-13 Shailesh D Padmani The assessee also did not file any reply in response to various notices issued u/s 142(1). The AO found that there were credit entries of Rs.20,44,848/- in bank account No.0584050001207 and Rs.16,49,888/- in account No.624601526144 maintained with ICICI Bank. These include cash deposit of Rs.11,75,000/-. The AO finally issued a show cause notice which is reproduced in page-3 of the assessment order. However, there was no compliance. Hence, the AO added Rs.36,94,736/- u/s 69A of the Act and determined total income at Rs.36,94,740/-.
Aggrieved by the addition made by AO, assessee filed appeal before CIT(A). The assessee did not respond to the notices issued by the CIT(A) on 3 occasions. Hence, the CIT(A) observed that assessee has not effectively pursued the appeal. He decided the appeal ex parte by confirming the addition made by AO.
Aggrieved by the order of Ld.CIT(A), appellant filed present appeal before the Tribunal. The Ld. AR submitted that the notices were issued on the wrong e-mail id and not on the e-mail id given in Form-35. He has filed screen shot of ITBA portal and requested that another opportunity may be granted to the assessee to plead the case of the assessee on merit before lower authorities.
On the other hand, Ld. Sr-DR for the revenue relied on the orders of the lower authorities.
A.Y 12-13 Shailesh D Padmani 10. We have heard both the parties and perused the materials available on record. It is an undisputed fact that the assessee has been negligent and non- cooperative during the assessment proceedings. Consequently, AO had to complete the ‘best judgement assessment’ u/s.144 of the Act. Subsequently, the CIT(A) has upheld the order of the AO and dismissed the appeal by observing that the appellant was totally non-compliant. The Ld. AR submitted that the appellant could not appear before the CIT(A) since notices were sent in wrong e-mail id. instead of the e-mail id given in Form-35. The Ld. AR requested for one more opportunity should be allowed in the interest of justice and fair play. We find that appellant could not plead his case before the CIT(A) who has passed the ex parte order due to non-compliance by the assessee before him. However, it is seen that the notices were sent on wrong e-mail id, due to which assessee could not file necessary details and explanation to defend his case. Hence, we are of the view that one more opportunity should be given to the assessee to plead his case. It is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest his case. We, therefore, set aside the order of CIT(A) and restore the matter back to the file of AO for fresh adjudication after affording sufficient opportunity of being heard to the assessee. The assessee is also directed to furnish explanation and relevant details before the AO expeditiously by not seeking adjournment
In the result, appeal of the assessee is allowed for statistical purposes.