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PER PAWAN SINGH, JUDICIAL MEMBER; 1. This set of two appeals by assessee are directed against the orders of learned Commissioner of Income Tax (Appeals)-24, Mumbai, both dated 16 March 2017 for assessment year 2008-09 and 2009-10. In both the appeals the assessee has raised certain common grounds of appeal
. Thus, both the appeals were clubbed, heard together and are decided by common order. For appreciation of fact the appeal for assessment year 2008-09 is treated as lead case.
2. Brief facts of the case are that assessee is an individual filed his return of income for assessment year 2008-09 on 31st July 2009 declaring total ITA No. 4644 & 4645/Mum/2017- Sanjay Rajaram Sonawane income of Rs.7,44,670/-. A survey action under section 133A was conducted at the business premises of assessee on 19th November 2010. On the basis of survey action the assessment for the year consideration was reopened under section 147. Notice under section 148 dated 28th February 2013 was served upon the assessee. In response to the notice under section 148 the assessee contended that return of income already filed under section 139(1) may be treated as return filed in pursuance of notice under section 148. The assessing officer completed the assessment on 28-03-2014 under section 143(3) read with section 147. The assessing officer while passing the assessment order made addition on account of unexplained investment of Rs. 20 lacks in Neelkanth Darshan, unexplained investment of Rs. 95 lacks in shops in Neelkanth Darshan, unexplained cash payment of Rs.2.65 lacks, and deemed rent under section 24(3) of Rs. 1.35 lakh. On appeal before learned Commissioner (Appeals) all the addition was confirmed by dismissing the appeal of assessee ex-parte. Thus, further aggrieved by the order of Commissioner (Appeals) the assessee has filed present appeal before us.
None appeared on behalf of assessee despite the service of notice of hearing of the appeal. On perusal of record, we find that on last date of hearing adjournment was sought on behalf of assessee and the appeals were fixed/ adjourned for today. Today, none appeared on behalf of assessee; therefore, & 4645/Mum/2017- Sanjay Rajaram Sonawane we left no option except to hear the submission of learned DR for revenue and to decide the appeal on the basis of material available on record.
We have heard the submission of learned DR for the revenue and perused the material available on record. The learned DR for the revenue supported the order of lower authorities. The learned DR further submits that assessee is habitual defaulter in not making an appearance and to furnish necessary details and evidences before the authorities concerned. The attitude of the assessee before the assessing officer was non cooperative as well as he didn’t appear before the first appellate authority, despite giving sufficient opportunity. The learned DR prayed to confirm the order of learned Commissioner (Appeals) on all the additions and to dismiss the appeal.
We have considered the submission of learned DR and perused the material available on record. First ground of appeal relates to passing the impugned order by learned Commissioner (Appeals) without giving adequate the opportunity of being heard. We have noted that the assessee filed appeal before the learned Commissioner appeal on 22nd of April 2014. The appeal of assessee was dismissed on 16th March 2017. Perusal of impugned order reveals that the learned Commissioner (Appeals) recorded that “case has been posted several occasions for hearing. As the assessee is not receiving the notice and not complying with the appeal proceeding, final opportunity given by a notice sent to be served through assessing officer”. The learned Commissioner (Appeals) further observed that despite giving several 3 & 4645/Mum/2017- Sanjay Rajaram Sonawane opportunities and serving notice through assessing officer the assessee neither appeared nor shown any interest to pursue and prosecute the appeal.
The learned Commissioner (Appeals) dismissed the appeal of the assessee without it on merit.
We have noted that learned Commissioner (Appeals) has not recorded his satisfaction for which dates the appeal was fixed for hearing, when the notices were served and the manner in which the notices were served upon the assessee. The learned Commissioner (Appeals) decided the appeal by placing reliance on the decision of Multiplan India Private Ltd (38 ITD 320). In our view the assessee was not granted sufficient and fair opportunity of hearing during the first appellate stage. Therefore, we deem it appropriate to restore the appeal to the file of learned Commissioner (Appeals), with the direction to decide all the issues raised by assessee on merit in accordance with law. Needless to say that learned Commissioner (Appeals) shall provide sufficient opportunity of hearing before deciding the appeal on merit. The assessee is also directed to appear as and when the appeal is fixed by learned Commissioner (Appeals) and to provide all necessary information, details and evidences to substantiate his contention in support of various grounds of appeal
raised by him. The assessee is further directed not to seek any adjournment without any valid reasons.
7. In the result ground number one of the appeal is allowed. & 4645/Mum/2017- Sanjay Rajaram Sonawane
As we have allowed the ground No.1 raised by the assessee and restored all the grounds of appeal
to the file of Commissioner (Appeals) to decide all the issues / grounds of appeal on merit and therefore the discussion on other grounds of appeal have become academic.
9. In the result appeal of the assessee is allowed for statistical purpose. appeal for AY 2009-10
10. We have noted that the facts for the year under consideration are similar as of earlier year; the assessee has raised certain common grounds of appeals.
The assessee has raised ground No. 1 that the learned Commissioner (Appeals) not granted sufficient opportunity of hearing while deciding the appeal, which is identical ground of appeal raised by assessee in appeal for AY 2008-09, which we have already restored to the file of learned Commissioner (Appeals), therefore following the principle of consistency, the appeal for the year under consideration is also restored to the file of Commissioner (Appeals) with similar direction.
11. In the result this appeal of assessee is also allowed for statistical purpose. Order pronounced in open court on 29th January 2019.