Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, RAIPUR BENCH, RAIPUR
Before: SHRI PARTHA SARATHI CHAUDHURY, JM & SHRI ARUN KHODPIA, AM
आदेश / O R D E R Per Arun Khodpia, AM:
The captioned appeal is filed by the assessee against the order of Commissioner of Income Tax (Appeals), NFAC, Delhi, [in short “Ld. CIT(A)”], under section 250 of the Income Tax Act, 1961 (in short “the Act”), dated 08.01.2025, for the Assessment Year 2016-17, which in turn arises from the order passed by Assessing Officers, National Faceless Assessment Unit, Income Tax Department, Delhi (in short “Ld. AR”), u/s 147 r.w.s. 144B of the Act, dated 04.12.2023.
That on the fact and circumstances of the case the notice issued u/s 148 is bad in law and liable to be quashed.
That on the facts and circumstances of the case the order passed by the Ld. A.O. u/s 144/147 r.w.s 144B is bad in law.
That on facts and circumstances of the case the addition of Rs.1,20,00,000/- on account of short term capital gain, which is unjustified and bad in law.
That the Assessee craves leave to add, alter, and amend modify, substitute, delete, and/ or rescind all or any of the grounds of appeal on or before the final hearing.
3. At the time of hearing, it is informed that the Ld. Counsel of the assessee had requested for adjournment, however, as the order of appeal by the First Appellate Authority is passed on ex-parte basis on account of non-compliance by the assessee, in our considered opinion the matter deserves to be set aside to the file of Ld. CIT(A), as have been decided by this tribunal, therefore, the adjournment sought by the assessee has been rejected and the matter is taken up for hearing on the basis of material available on record and to hear the respondents.
4. The Brief facts as stated in form 35 and extracted by the Ld. CIT(A) in appellate order, the assessee was partner of M/s Budhia Auto Korba. The firm was engaged in the business of selling of Two Wheelers Motor Bike of Hero Kavita Budhia Vs ITO, Ward-1, Korba Motors Ltd. The assessee has received interest from Partnership Firm M/s Budhia Auto of Rs.5,00,000/- and share of profit of Rs.23,612/-. The assessee had not filed her Return of Income for the year under consideration because of the unavoidable circumstances i.e. heavy financial loss arises in the business of the partnership firm and the assessee was mentally disturbed for this reason. That, a notice u/s 148 of the Income Tax Act, 1961 on 26.03.2023 was issued by the Income Tax Officer, Ward-1, Korba (C.G.) for re-assessment of the case but the same was not served to the assessee physically neither the same has been sent through mail of the assessee. Hence, it can be presumed that the notice has not been served on the assessee properly. That, the notice issued u/s 148 by ITO, Ward-1, Korba is without having jurisdiction over the case of the assessee because the jurisdiction over the case of the assessee lies with Deputy Commissioner of Income Tax, Korba (C.G.). That, the notice issued u/s 148 by ITO, Ward-1, Korba is without having jurisdiction over the case of the assessee because the jurisdiction over the case of the assessee lies with Deputy Commissioner of Income Tax, Korba (C.G.). That the notices issued u/s 142(1) was not in the knowledge of the assessee because due to closure of business of partnership firm, the assessee was not aware about online e- proceedings system. The Id. Assessing Officer has passed ex-parte assessment order without allowing proper opportunity of hearing, hence the same is unjustified and bad in law. The Id. Assessing Officer has alleged that the Kavita Budhia Vs ITO, Ward-1, Korba assessee has sold immovable property for Rs.1,20,00,000/- and not filed her Return of Income, hence considered whole amount of sale proceeds of Rs.1,20,00,000/- as short term capital gain which is unjustified and bad in law. The assessee has purchased the above mentioned property in the F.Y. 2003- 04 for Rs.2,78,000/- and further made construction during F.Y. 2006-07 to 2008- 09. The Id. AO has not given any rebate for cost of acquisition and cost of improvement which is highly unjustified and bad in law.
5. Aggrieved with the aforesaid additions, assessee preferred an appeal before the Ld. CIT(A), however, on account of non-prosecution, the appeal of assessee is dismissed by the Ld. CIT(A) with the following observations: 4. Observations & Findings:-
The appellant was issued notices dated 04.12.2024 and 12.12.2024 to submit its response, but neither any reply nor any adjournment was sought by the appellant. Further on 26.12.2024 notice was again issued to the appellant to submit his response by 03.01.2024, in which it was specifically, mentioned that, “Please refer to this office notice dated 12.12.2024 vide DIN No.-: ITBA/NFAC/F/APL_1/2024 25/1071138865(1). It is observed that, compliance was to be made to this office notice by you on 18.12.2024, but however the same was ignored. Hence, please submit your details by on or before 03.01.2025, failing which the case shall be decided on merits” but the same remain un-complied. The aforesaid mentioned facts and circumstances show that the appellant is not interested in pursuing its appeal. The maxim 'vigilantibus non dormientibusjurasubvenunt' i.e. the law assists those who are vigilant and not those who sleep over their right, is applicable in this case. for the AY 2002-03 in the case of M/s Chhabra Land & Housing Ltd. after following the decision of Hon'ble Supreme Court in the case of B.N. Bhattacharjee & other 118 ITR 461
Considering the above facts and material on record, it is concluded that the Assessing Officer has made the addition on merits after thoroughly analyzing the facts of the case. No infirmity or error is observed in the order passed by the Assessing Officer. Consequently, the appeal filed by the assessee lacks merit and is hereby dismissed.
In the result, the appeal of the assessee stands dismissed.
Being aggrieved with the aforesaid order of Ld. CIT(A), assessee preferred an appeal before us, which in under consideration.
After thoughtfully considering the facts and material available on record. Admittedly, from the order of Ld. CIT(A) it is emanating that the appeal of assessee has been decided on ex-parte basis by dismissing the same in limine on account of non-prosecution, without adverting to the merits of the issues, accordingly, the matter merits to be set aside back to the file of Ld. CIT(A) for denovo adjudication. Our decision is supported by the view adopted by this tribunal in the case of of Brajesh Singh Bhadoria Vs. Dy./ Asstt. Commissioner of Income Tax, Central Circle-2, in IT(SS) No. 1 to 6, 8 & 9/RPR/2025 dated 20.03.2025, wherein the relevant findings were as under:
Kavita Budhia Vs ITO, Ward-1, Korba 7. We have considered the submissions of the parties herein and analyzed the facts and circumstances involved in all the captioned appeals. After careful perusal of the documents on record, we find that the assessee had assailed the legal ground as aforestated, however, the fact of the matter is that on perusal of the respective orders of the Ld. CIT(Appeals) for all the years before us, it is also evident from Para 3 that there has been no compliance by the assessee before the said authority and as such, an ex-parte order was passed for the concerned years in appeal. Admittedly, as per record, sufficient opportunities had been provided to the assesse, however, there was no compliance by the assessee. In effect, rights and liabilities of the parties herein are yet to be adjudicated substantially at the level of the first appellate authority. Though in the impugned orders, discussion has been done as per material available on record by the Ld. CIT(Appeals) but they are only Form 35, statement of facts, grounds of appeal and the assessment order. However, due to non-compliance by the assessee, there are no submissions, evidence and documents submitted for adjudication by the assessee before the Ld. CIT(Appeals). That as per Para 3 of the Ld. CIT(Appeals) order, there has been no compliance on the part of the assessee for submitting detailed explanations regarding the grounds of appeal for the years under consideration which clearly shows that the grounds of appeal raised before the first appellate authority has not been substantiated on merits through corroborative evidence /submissions.
That in such scenario we are of the considered view that the Income tax Act is within the ambit of welfare legislation which are completely different from that of the penal legislation, therefore, benefit of doubt whenever arises, it has to be interpreted in favour of the assessee tax payer within the parameters of law and facts. There may be circumstances beyond control of the assessee because of which, the assessee may not have been able to represent his case on the given Kavita Budhia Vs ITO, Ward-1, Korba dates of hearing before the Ld. CIT(Appeals). Though it is correct that there was no compliance from the side of the assessee, however, nothing is there on record which suggests any deliberate non-compliance or malafide conduct of the assessee. That further, if one final opportunity is provided to the assessee to represent his case before the first appellate authority, the position of the revenue will also not be jeopardized.
Recently, the Hon’ble High Court of Bombay in the case of Vijay Shrinivasrao Kulkarni Vs. Income-tax Appellate Tribunal (2025) 171 taxmann.com 696 (Bom.), dated 04.02.2025 observed that in the case the Assessing Officer had passed an ex-parte order and when the matter went on appeal before the Ld. CIT(Appeals)/NFAC, it had also dismissed the matter ex- parte due to non-compliance by the assessee’s authorized representative, when the matter came up before the ITAT, it had failed to address the infirmity regarding the fact that the assessee was not afforded proper opportunity of being heard and the matter was dismissed ex-parte by the Ld. CIT(Appeals)/NFAC which amounted to violation of principles of natural justice, and instead ITAT decided the case on merits, in such circumstances, the Hon’ble High Court of Bombay held that passing of an order on merits by the ITAT even when the impugned order was passed ex-parte amounts to violation of principles of natural justice and accordingly, the said matter was remanded to ITAT for passing a fresh order in accordance with law after hearing the parties. The legal principle as enshrined in the present judgment is crystal clear that the principles of natural justice i.e. the right to be heard is to be provided and accordingly, the matter had to be substantially adjudicated by the appellate authority. Therefore, if the impugned order of the Ld. CIT(Appeals)/NFAC is an ex-parte order, the only recourse in conformity with the aforesaid judicial pronouncement is to remand the matter back Kavita Budhia Vs ITO, Ward-1, Korba to the file of the Ld. CIT(Appeals)/NFAC for fresh adjudication in terms with the principles of natural justice providing one final opportunity to the assessee.
10. In the aforesaid case, the Hon’ble High Court of Bombay had referred to a judgment of the Hon’ble Supreme Court in the case of Delhi Transport Corporation vs. DTC Mazdoor Union AIR 1999 SC 564, wherein the Supreme Court inter-alia held that Article 14 guarantees a right of hearing to a person who is adversely affected by an administrative order. The principle of audi-alteram partem is a part of Article 14 of the Constitution of India. In light of such decision, the petitioner ought to have been granted an opportunity of being heard which, partakes the characteristic of the fundamental right under Article 14 of the Constitution of India.
11. The Hon’ble High Court of Bombay in the aforesaid case had referred to a decision of the Hon’ble Supreme Court in the case of Commissioner of Income Tax Madras v. Chenniyappa Mudiliar 1969 1 SCC 591, wherein the Supreme Court in interpreting the section 33(4) of the Income Tax Act, 1922 has held that the appellate tribunal was bound to give a proper decision on question of fact as well as law, which can only be done if the appeal is disposed off on merits and not dismissed owing to the absence of the appellant. Reverting to the facts of the present case the grounds of appeal were simply filed before the Ld.CIT(Appeals) they were not substantiated or corroborated through submissions and filing of documentary evidences since the assessee had not complied before the Ld.CIT(Appeals) on the dates of hearing. Therefore, as per framework of the Act there must be adjudication on merits by the first appellate authority and one final opportunity be provided to the assessee to represent his matter on merits in the interest of natural justice.
Kavita Budhia Vs ITO, Ward-1, Korba 12. There may even be a situation where the Ld. Counsel for the assessee may assail a legal ground before the Tribunal following the decision of the Hon’ble Supreme Court in the case of National Thermal Power Company Ltd. Ltd. Vs. CIT (1998) 229 ITR 383 (SC) with a contention that irrespective of the order of the Ld. CIT(Appeals) being ex-parte, the Tribunal may decide the legal issue that has been raised by the Ld. Counsel. In our view, the decision of the Hon’ble Supreme Court in the case of National Thermal Power Company Ltd. Ltd. Vs. CIT (supra) provides that any legal issue which goes to the root of the matter and is established through legal principles, the assessee can take up and raise such legal issue at any appellate forum irrespective of whether the assessee had raised such legal issue at the sub-ordinate level or not, however, it always depends on facts and circumstances of each case whether the Tribunal would decide the legal ground or in a case where the question is of natural justice and ex-parte order by the Ld. CIT(Appeals) the Tribunal would remand it back to Ld.CIT(Appeals) providing final opportunity to a bonafide assessee. The Tribunal as the highest fact finding authority must be certain enough that the impugned order before it has been passed on merits and is a speaking order where the assessee has also complied during the process of litigation. In case, where the order of the Ld. CIT(Appeals) itself is ex-parte and some legal ground is raised and if the Tribunal decides such legal ground where in fact principles of natural justice is left unanswered due to the fact that the impugned order before the Tribunal is ex- parte and there was no compliance by the assessee in such scenario the Tribunal would also be usurping the power of the Ld. CIT(Appeals) which is also a statutory authority as per the Act. This is due to the reason that as per framework of the Act, Ld. CIT(Appeals) is the first appellate authority where an appeal by assessee it would be substantially decided through a speaking order by the Ld. CIT(Appeals). When this part is over and either party is aggrieved second appeal lies before the ITAT. Now if for every ex-parte order passed by the Ld.
Kavita Budhia Vs ITO, Ward-1, Korba CIT(Appeals), of course due to non-compliance by the assessee, if the Tribunal adjudicates a legal ground, for instance validity of assessment or reassessment order and answers it in favour of the assessee then it would create an easy route for assessee getting redressal from Tribunal even without bothering to comply with hearing notices before the Ld. CIT(Appeals). This would dismantle the structure of the Act which is definitely not the intention of the legislature. Here in this situation, where the benefit of doubt is given to the assessee since he had not complied with the hearing notices before the Ld. CIT(Appeals) which resulted in passing of an ex-parte order by the Ld. CIT(Appeals), in such scenario, as per the scheme of the Act and following the principles of natural justice, the only course of action is to remand the matter back to the file of the Ld. CIT(Appeals) for adjudication on merits providing one final opportunity to the assessee.
In view thereof, we set aside the respective orders of the Ld. CIT(Appeals) for all the years and remand the same to their file for denovo adjudication on merits. At the same time, we direct the assessee that this being the final opportunity, there must be compliance on merits before the first appellate authority. Needless to say, the Ld. CIT(Appeals) shall provide reasonable opportunity of being heard to the assessee and pass an order in terms of Section 250(4) and (6) of the Act within three months from receipt of this order.
8. It is to further be noted that as in the present case, there was no adjudication on merits by the Ld. CIT(A) on that count also, the matter deserves to be set aside for denovo adjudication by the First Appellate Authority. This aspect has been delt with and a judgment has been delivered by the Hon’ble Mumbai High Court in the case of CIT vs. Premkumar Arjundas Luthra (HUF)
Kavita Budhia Vs ITO, Ward-1, Korba reported in [2016] 240 taxman 133; the relevant observations wherein are produced hereunder for the sake of reliance and applicability in the present case:
“…………It is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in support. Section 251(l)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it dear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus, once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact, the CIT(A) is obliged to dispose of the appeal on merits. In fact, with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CIT(A) is co-terminus with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore, just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non-prosecution of the appeal by the assessee. This is amply dear from the Section 251(l)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to at the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non- prosecution as is evident from the provisions of the Act.”
9. In view of aforesaid observations of the Hon’ble Bombay High Court and also the decision in the case of Brajesh Singh Bhadoria (supra), in the interest of justice, we find it appropriate to restore the present case back to the files of Ld. CIT(A) for fresh adjudication, within 3 months from receipt of this order.
Needless to say, the assessee shall be afforded with reasonable opportunity of being heard in the set aside appellate proceedings. The assessee as conceded through its authorized representative before us, also directed to cooperate and assist proactively in the set aside proceedings, failing which the Ld. CIT (A) would be at liberty to decide the case in accordance with the mandate of law.
In result, appeal of the assessee is allowed for statistical purposes, in terms of over aforesaid observations.
Order pronounced in the open court on 08/05/2025.
Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (ARUN KHODPIA) �ाियक सद� / JUDICIAL MEMBER लेखा सद� / ACCOUNTANT MEMBER रायपुर/Raipur; िदनांक Dated 08/05/2025 Vaibhav Shrivastav Kavita Budhia Vs ITO, Ward-1, Korba आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant- Kavita Budhia 2. ��थ� / The Respondent- ITO, Ward-1, Korba 3. The Pr. CIT, Raipur (C.G.) 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, रायपुर/ DR, ITAT, Raipur 5. गाड� फाईल / Guard file. // स�ािपत �ित True copy //