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Facts
The appellant filed a return of income for AY 2011-12, which was re-opened by the Assessing Officer (AO) based on AIR information regarding cash deposits amounting to Rs. 21,95,135/-. The AO passed an ex-parte assessment order under section 144 r.w.s. 147 of the Income Tax Act, 1961. The assessee's appeal before the Commissioner of Income Tax (Appeals) [CIT(A)] was dismissed without adjudication on merits.
Held
The Tribunal noted that the assessee failed to comply with multiple notices issued by the CIT(A) and attributed this to the consultant not informing them. While acknowledging the non-cooperative attitude, the Tribunal also noted the Revenue's representative did not object to the assessee's request for an opportunity to explain the case. Therefore, the Tribunal set aside the order of the lower authority.
Key Issues
Whether the lower authorities erred in dismissing the appeal without adjudicating the grounds on merits and if an opportunity should be provided to the assessee to present their case.
Sections Cited
139, 144, 147, 250, 251, 69A, 44AD
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Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT
Before: DR. ARJUN LAL SAINI, AM. &
आदेश / O R D E R
PER DINESH MOHAN SINHA JM;
Captioned appeal filed by assessee pertaining to Assessment Year 2011- 12, is directed against order passed by Commissioner Of Income Tax (Appeal), vide order dated 10/10/2024, which in turn arises out of an order passed by the Page | 1 Assessing Officer dated 17/12/2018 u/s 147 r.w.s. 144 of the Income Tax Act, 1961.
GROUNDS OF APPEALS:-
1. Ld. CIT(A) erred in law as well as on facts in passing the ex-parte appellate order u's. 250 of the Income Tax Act, 1961 which is bad in law and without appropriate jurisdiction and liable to be set aside.
2. Ld. CIT(A) erred in law as well as on facts in not setting aside the matter to the file of ld. AO in view of the provision of section 251 of the act. 3.Ld. CIT(A) erred in law as well as on facts in not providing reasonable opportunity of being heard to the appellant.
4.Ld. CIT(A) erred in law as well as on facts in not adjudicating the grounds of appeal raised by the appellant in his appeal memo and thereby dismissing the appeal for want of prosecution and without passing any comment on merit..
5.Ld. AO erred in law as well as on facts in re-opening assessment u/s. 147 of the act, which is bad in law as well as without appropriate jurisdiction. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 6.Ld. AO erred in law as well as on facts in passing the assessment order u/s. 144 r. w. s. 147 of the act, which is bad in law. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 7.Ld. AO erred in law as well as on facts in making addition of Rs. 21,95,135/- on account of gross cash deposit made in the bank account. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 8.Ld. AO erred in law as well as on facts in making the assessment and addition on the basis of surmises and conjectures. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 9.Ld. AO erred in law as well as on facts in making the assessment and addition contrary to the provision of section 144 of the act. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 10.Ld. AO erred in law as well as on facts in not restricting the addition upto peak balance in the bank account. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same. 11.Ld. AO erred in law as well as on facts in not restricting the addition upto 8% profit element embedded therein by virtue of provision of section 44AD of the act. Ld. CIT(A) erred in law as well as on facts in not adjudicating the same.
Facts Of The Case as recorded by The Ld CIT(A)
“The appellant had filed his return of income under section 139 of the act on 01/09/2011 declaring total income of Rs. 1,94,390/-. The assessment of the appellant was re-opened on the basis of the AIR information deposit cash amounting to Rs. 21,95,135/-. The assessment has been finalised ex-parte by passing order under section 144 r.w.s.147 of the act. In the said ex-parte assessment order framed by the Ld AO Ward 3 (1)(3), Rajkot made addition of Rs.2195135 /- on account of cash deposits in the order passed under section 144rws147 of the Income Tax Act on 17.12.2018, against which the appeal has been filed.”
That the assessee filed an appeal against the order of assessment before Ld CIT(A). That said appeal was disposed of by Ld. CIT(A) with following observation.
"The current appeal of the appellant is liable to be dismissed and accordingly dismissed, without any adjudication of the grounds of appeal. As a result, appeal filed by the appellant against the order passed u/s. 144rws147 of the I.T. Act for A.Y. 2010-11 is treated as DISMISSED."
In the result, the appeal of the assessee is hereby dismissed.
That the assessee field an appeal against the impugned order of the Ld CIT(A) date 10.10.2024 before us.
(i) During the course of hearing the Ld AR has submitted that the assessee could not comply with the direction of the notice issued by Ld CIT(A). That Ld AR further requested that an opportunity may kindly be provided to explain the case before the lower Authority. Page | 3 (ii) On the contrary the Ld DR has relied on the order of the Ld CIT(A) and submitted that number of notice were issued to the assessee for complice but assessee fail to submit the replay. Due opportunity was provided to the assessee. However Ld DR has not objected the request of the assessee for granting an opportunity to explain the case.
We have heard both the representative of the party and perused all the material available on record before us. We note that before passing the order the Ld CIT(A) had issued notice on 25.03.2018, 11.07.2018, 27.07.2018, 06.09.2018 all the four notice remain uncomplied with by the assessee. The Ld CIT(A) has observed in the order that no infirmity or illegally was found in the order of Ld AO and confirmed the action of the Ld AO about the unexplained investment u/s 69A of the Act. Besides this the Ld CIT(A) has dismissed the appeal of the assessee stating that assessee is not willing to pursue the appeallate proceedings anymore. The Ld CIT has decided the case ex-party. We note that the assessee could not attend the hearing because the consultant of the assessee did not inform about the notice. We note that the assessee has a non Co-Operative attitude. Hence we denied the assessee to depend a cost of Rs. 5000/- in the Hon’ble P.M. Care fund within 10 days from today and the receipt of the same should be placed on record. We are of the view that the request of the Ld AR asking for one opportunity to present the case before the Ld CIT(A) need to be accepted. We therefore set-aside the order of the lower authority and the matter remit back to the file of Ld CIT(A) to adjudicate the matter according to law after giving due opportunity to the assessee to submit his case.
In result the appeal of the assessee allowed for statical purpose.
Order pronounced in the open court on 17 / 03 /2025.