JAYESH PURUSHOTTAM PATEL,PUNE vs. THE COMMISSIONER OF INCOME TAX APPEAL , PUNE

On the facts and circumstance of the case and in law the Learned CIT(A) erred in passing order based on the notice u/s 148 which is dispatched to the appellant on 01/04/2021 i.e. the date on which section 148 did not exist. Hence the notice served is invalid and consequently the re-opening proceedings are bad in law and order passed u/s 147 r.w.s 148 be treated as null and void. 4. On the facts and circumstances of the case and in law the Learned CIT(A) erred in passing order based on re-opening of assessment to overcome mistake committed by the Learned Assessing Officer while making original assessment. Hence the reopening is bad-in-law and order passed u/s 147 r.w.s. 148 be treated as null and void. 5. On the facts and circumstances of the case and in law the Learned CIT(A) erred in reopening of the assessment without any fresh material in his possession which was not available at the time of original assessment u/s 143(3). The date of filling of return cannot form fresh material available with AO. Hence the re-opening is bad in law and order passed u/s 147 r.w.s. 148 be treated as null and void. 6. On the facts and circumstances of the case and in law the Learned CIT(A) erred in passing order based on the approval u/s 151 of the competent authority which was not made available to the appellant inspite of repetitive requests made by the appellant in the course of re-assessment proceedings. Hence order u/s 147 r.w.s 148 be treated as null and void. 7. On the facts and circumstances of the case and in law the Learned CIT(A) erred in reopening of the assessment based on audit objection without an independent application of his own mind. Hence the re-opening is bad in law and order passed u/s 147 r.w.s 148 be treated as null and void. 8. On the facts and circumstances of the case and in law the Learned CIT(A) erred in passing order based on the re-opening of assessment and reassessment is nothing but change in opinion by the AO. Hence the re-opening is bad in law and order passed u/s 147 r.w.s 148 be treated as null and void. 9. On the facts and circumstances of the case and in law the Learned CIT(A) erred in passing order by disallowing a deduction claimed by the appellant under section 80IA of Rs.50,79,918/-, the same shall be allowed. 10. On the facts and circumstances of the case and in law the Learned CIT(A) erred in passing order without providing opportunity of being heard and raise a demand of Rs.30,80,607/- and same needs to be deleted.

Your appellant prays leave to add, amend, delete, modify or substitute any of the grounds of appeal if occasion demands.”

Facts of the case, in brief, are that the assessee is an individual deriving income from business and has furnished is return of income on 19.10.2016 claiming deduction under Chapter VI-A of the IT Act. Assessment order dated 23.04.2018 was passed u/s 143(3) of the IT Act wherein deduction u/s 80IA of the IT Act was allowed to the assessee. Subsequently, the case of the assessee was reopened u/s 147 of the IT Act since the assessee has filed return of income after due date, therefore the assessee was not eligible to claim any deduction under Chapter VI-A of the IT Act. Accordingly, notice u/s 148 of the IT Act was issued to the assessee and subsequently statutory notices u/s 143(2) and 142(1) of the IT Act were also issued to the assessee. After considering the reply of the assessee, the Assessing Officer completed the assessment proceedings and vide order dated 31.03.2022 determined income at Rs.1,69,98,118/- as against the income returned by the assessee at Rs.1,19,18,200/-. The above assessed income includes addition of Rs.50,79,918/- towards disallowance of deduction u/s 80IA of the IT Act.

Being aggrieved with the above assessment order, the assessee preferred an appeal before Ld. CIT(A)/NFAC. Since the assessee remained absent, Ld. CIT(A)/NFAC dismissed the appeal filed by the assessee. 5. It is the above order against which the assessee is in appeal before this Tribunal. 6. We have heard Ld. counsels from both the sides and perused the material available on record. In this regard, we find that it is the sole prayer of the Counsel of the assessee that one opportunity to appear before Ld. CIT(A)/NAFC may kindly be granted so that the assessee can substantiate the grounds of appeal before Ld. CIT(A)/NFAC. Ld. DR also raised no objection to the above request of the assessee. 7. In this regard, we find that admittedly the appeal was dismissed by Ld. CIT(A)/NFAC for want of prosecution without going into merits of the case. Considering the totality of the facts of the case and in the interest of justice and without going into merits of the case, we deem it appropriate to set-aside the ex-parte order passed by Ld. CIT(A)/NFAC and remand the matter back to him with a direction to decide the appeal afresh as per fact and law after providing reasonable opportunity of hearing to the assessee. The