SHRI GANESH ENTERPRISE,AHMEDABAD vs. ITO, WARD-1(3)(5), AHMEDABAD

On a perusal of the material on record, it is seen that during the year under consideration i.e. AY 2010-11, the assessee, a partnership firm did not file its return of income. It came to the knowledge of Ld. AO that during the year under consideration, a sum of Rs. 7,60,000/- was credited in the bank account of the assessee and in spite thereof, the assessee had not filed its return of income. Accordingly, reassessment proceedings for the captioned year were reopened vide notice u/s 148 of the Act dated 31/03/2017 which was duly served on the assessee, but the same remained uncomplied with. Then another notice u/s 142(1) dated 29/09/2017 was issued and served, but the same again remained uncomplied with. Finally, the Ld. AO, issued show cause notice dated 10/11/2017 u/s 144 of the Act which again remained unresponded. The assessee neither filed return of income nor filed any details in response to the above show- cause notice. The Ld. AO accordingly passed ex-parte assessment order treating the entire sum of Rs. 7,60,000/- as “income from other sources” of the assessee in absence of any explanation from the assessee.

In the appellate proceedings before the Ld. CIT(Appeals), the Ld. CIT(A) issued notice dated 11/10/2018 fixing the hearing for 25/10/2018. However, none appeared in response to the said notice. The Ld. CIT(Appeals) then issued another notice dated 31/10/2018 giving ‘final opportunity’ of hearing to the assessee and fixing the case for 16/11/2018. However, this notice also remained uncomplied with. The Ld. CIT(Appeals) held that since the assessee is not interested in pursuing the appeal and has not filed any documents, explanation and evidence in support of grounds of appeal, the appeal of the assessee is being dismissed for want of prosecution.

Before us the Ld. AR of the assessee has sought time to furnish paper- book in support of its factual and legal contentions. However, we notice that the issue involves a factual analysis of certain unexplained credit entry appearing in the asseessee’s bank account, which has not been examined either during the course of assessment proceedings nor during proceedings before first appellate authority. We further note that in the proceedings before CIT(Appeals), sufficient opportunity was not granted to the assessee to cause appearance and present its case. The Ld. CIT(Appeals) issued the first notice on 11/10/2018 and then issued another notice on 31/10/2018 i.e. within a gap of three weeks granting “final opportunity” of hearing and then proceeded to finally pass order on 19/11/2018, dismissing the appeal of the assessee for want of prosecution. Thus, in our view, Ld. CIT(Appeals) should have afforded further opportunity to the assessee to cause appearance and present its case in the interests of justice. Even otherwise, the Ld. CIT(Appeals) should have dealt with the case on merits based on material available on record, which was not done in the instant case. Accordingly, in the interest of justice, we direct the matter be restored to the file of Ld. CIT(Appeals) for adjudication on merits.

In the result, the appeal of the assessee is allowed for statistical purposes.