MOHD VIZZARATH ALI,HYDERABAD vs. INCOME TAX OFFICER, WARD-8(2), HYDERABAD

The Ld.DR on the other hand has not raised any objection.

We have heard both the parties, gone through the affidavit and medical certificate filed by the assessee for condonation of delay of 47 days. Reckoning the date of the appellate order i.e. 21.08.2024 as the date of service, the assessee ought to have filed appeal before the Tribunal within 60 days from the end of the month in which the appellate order was issued and served on the assessee i.e. on or before 31.10.2024, but the assessee filed appeal on 06.12.2024, with the delay of 36 days. We find that there is a reasonable cause for the assessee to file the appeal belatedly, hence, we condone the delay of 36 days in filing of the appeal before the Tribunal and admit the appeal for adjudication in the interest of justice.

The brief facts of the case are that the assessee is an individual and has not filed his return of income for the A.Y.2017-18 on or before the due date provided u/s 139 of the Income tax Act, 1961 (“the Act”). A notice u/s 142(1) of the Act was issued on 12.03.2018, calling the assessee to prepare true and correct return of income, in respect of which, the assessee was assessable under the Act. As per notice u/s 142(1) of the 3

The assessee carried the matter in appeal before the first appellate authority, but neither appeared nor filed any details, which is evident from para 4 of the Ld.CIT(A) order, where the case was posted for hearing on many occasions, but no response from the assessee. Therefore, the Ld.CIT(A) dismissed the appeal filed by the assessee for non-prosecution by following the decision of Hon'ble Supreme Court in the case of CIT Vs.B.N.Bhattacharjee & Others [1979] 10 CTR 354 (SC) and also upheld the additions made by the Assessing Officer towards credits in the bank account including cash deposited during the demonetization period.

Aggrieved by the Ld.CIT(A) order, the assessee is now in appeal before the Tribunal.

We have heard the both the parties, perused the material on record and also gone through the orders of the authorities below. Admittedly, the proceedings before the Assessing Officer are ex-parte. The assessee neither appeared nor filed any details, therefore, the Assessing Officer passed ex-parte best judgement assessment order and made addition towards cash deposits u/s 69A of the Act and brought to tax u/s 115BBE of the Act. Although the appellant filed appeal before the Ld.CIT(A), the assessee neither appeared nor filed any details, which is evident from para 4 of the Ld.CIT(A) order, where the appeal was posted for hearing on many occasions, but there was no response from the assessee. Therefore, the Ld.CIT(A) dismissed the appeal filed by the assessee ex-parte for non- prosecution. However, the issues involved in the appeal include the additions made towards cash deposited u/s 69A of the Act. It is a well settled principle by the decisions of various courts that even in the case of non- appearance of the parties, the appeals should be decided on merits, based on material available on record. Since the Ld.CIT(A) dismissed the appeal filed by the assessee for non- prosecution, in our considered view, to give one more opportunity of hearing to the assessee, the matter needs to be set aside to the file of the lower authorities. Further, since the assessment proceedings itself are ex-parte u/s 144 of the Act, instead of setting aside the issue to the file of the Ld.CIT(A), we deem it appropriate to set aside the issue to the file of the Assessing Officer. Thus, we set aside the order passed by the Ld.CIT(A) and restore the issue back to the Assessing Officer for fresh consideration. The Assessing Officer is directed to reconsider the issue denovo, after providing another opportunity of hearing to the assessee and decide the issue of cash deposited into bank account in accordance with law. The assessee is directed to furnish relevant evidences before the Assessing Officer, without seeking any adjournment. The assessee is also directed to pay nominal cost of Rs.1000/- for showing non-cooperation to the proceedings and pay the cost as directed above to the Prime Minister Relief Fund and produce the proof of payment of cost to the Registry within 15 days from the date of this order.

In the result, appeal filed by the assessee is allowed for statistical purpose. Order pronounced in the Open Court on 1st January, 2025. (VIJAY PAL RAO) VICE PRESIDENT Hyderabad, Dated 1st January, 2025 L.Rama, SPS Copy to: