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Facts
The Assessing Officer (AO) completed an ex-parte assessment under Section 144 read with Section 147, making an addition of Rs. 24,07,500.00 as unexplained credit, due to the assessee's failure to respond to notices. The Ld. CIT(A) subsequently dismissed the assessee's appeal in limine without deciding the issue on merits, as the assessee could not represent their case despite multiple opportunities.
Held
The Tribunal held that in the interest of justice, the assessee should be given one more opportunity of being heard. The matter is restored to the file of the Assessing Officer for a de novo verification and assessment, with directions for the assessee to cooperate and for the AO to provide adequate opportunity of hearing.
Key Issues
Whether the ex-parte assessment by the AO and subsequent dismissal of the appeal by the CIT(A), due to assessee's non-compliance, warrants another opportunity for hearing and a de novo assessment on merits.
Sections Cited
143(2), 144, 139(1), 147
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI BENCH ‘SMC’: NEW DELHI
ORDER PER S.RIFAUR RAHMAN, AM: 1. This appeal has been filed by the Assessee against the order of Learned Commissioner of Income Tax (Appeals), National
Faceless Appeal Centre (NFAC) Delhi [“Ld. CIT(A)”, for short], dated
16/08/2023 for Assessment Year 2011-12.
The assessee has raised the following grounds of appeal:
“1. That the order of Ld. A.O is bad in law and against the facts and circumstances of the case and hence is not sustainable.
2. That the Ld. A.O had erred in disposing the assessment without issuing notice u/s 143(2) of the Income Tax Act, 1961.
That the Ld. A.O had erred in disposing the assessment u/s 144 without considering the fact that assessee had filed return u/s 139(1) of the Income Tax Act 1961. 4 . That on facts and circumstances of the case and in Law, the Ld. A.O. has erred in making the addition for Rs. 24,07,500.00 under the head unexplained credit, without considering the replies submitted by the assessee.
5. That on facts and circumstances of the case and in Law, the Ld. A.O. has erred in making the addition for Rs. 24,07,500.00 without giving reasonable opportunity.
6. That on facts and circumstances of the case and in Law, the Ld. A.O. has erred in making the addition for Rs. 24,07,500.00 on the presumption that replies submitted are of very routine nature.
7. That the assessee had reserved the right to a add/modify/delete any ground of appeal at the time of hearing.
3. At the outset, the Ld. AR briefly submitted the facts in this case and agreed that Assessing Officer sent several notices, but assessee could not make submission before him, therefore, proceeded to make the assessment u/s 144 r. w. section 147 of the Act, 1961 (‘the Act’ for short). Further, he agreed that several opportunities were given by the Ld. CIT(A) as well and assessee could not represent his case due to non-receipt of the notices, however, he submitted that the Ld. CIT(A) has proceeded to dismiss the appeal filed by the assessee in limine without deciding the issue on merits.
4. On the other hand, Ld. DR relied on the order of the lower authorities and submitted that assessee has not utilized the opportunity provided by Assessing Officer as well as Ld. CIT(A).
However, he agreed that the order passed by Ld. CIT(A) is ex-parte order.
Considered the rival submissions and material placed on record.
On a perusal of the assessment order and First Appellate Authority order, we find that even though the Assessing Officer and Ld. CIT(A) provided opportunity on several occasions, assessee could not appear nor complied to the notices issued. We observed that Ld. CIT(A) dismissed the appeal filed by the assessee based on the information available on record.
Considering the totality of facts and keeping in view the additions/disallowance made by the Assessing Officer, we are of the opinion that assessee should be given one more opportunity of being heard. Accordingly, in the interest of justice, we are of the view that this matter should go back to the file of the Assessing Officer for denovo verification and assessment. Assessee shall cooperate with the proceedings before the Assessing Officer without taking unnecessary adjournments. Needless to say that the Assessing Officer shall give adequate opportunity of being heard to the assessee. Thus, this appeal is restored to the file of the Assessing Officer accordingly.
In the result, appeal filed by the assessee is allowed for statistical purpose.