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Facts
The appeal was filed by the assessee against an order passed by the CIT(A) for AY 2017-18. The assessee faced issues with accessing the IT portal and receiving hearing notices, leading to an ex-parte order. The appeal was filed beyond the limitation period.
Held
The Tribunal condoned the delay in filing the appeal, acknowledging the assessee's difficulties due to age and lack of technical knowledge. The Tribunal found that the assessment and appellate orders were passed ex-parte without providing adequate opportunity to the assessee.
Key Issues
Whether the assessee was denied a fair opportunity to present their case due to technical issues with the IT portal and incorrect contact details, leading to ex-parte orders, and whether the delay in filing the appeal should be condoned.
Sections Cited
144, 69A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, ‘DIVISION BENCH’, AMRITSAR
Before: SHRI UDAYAN DAS GUPTA & SHRI KRINWANT SAHAY
आदेश आदेश/Order आदेश आदेश
Per Krinwant Sahay, AM: Appeal in this case has been filed by the Assessee against the order dated 19.01.2023passed by Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (NFAC) for A.Y. 2017-18. 2. Grounds of appeal
are as under:-
1. 1. That the appellant was in no position to check the “e-proceeding tab" of the IT portal and mail registered on the ITBA portal "BASHARATAMIN@gmail.com" and mobile number
381-Asr-2023 Abdul Rashid Shah, Harran, J&K 2
"9419943837" was not accessible by the appellant (although same has been updated recently with correct credentials on the IT login profile)which resulted in non-compliance for the subsequent hearing notices. Since the hearing notices were sent on the above mail and were never served to the appellant. Appellant got no real opportunity to provide explanations which may be necessary or expedient in the interest of justice and fairplay.
2. That the addition of Rs 10,90,047.00 on account of cash deposited in the bank account out of sale proceeds alleging the same to be income chargeable to tax u/s 69A as unexplained investment without appreciating the facts of the ease and the scope of provisions of above section.
3. That two different approaches have been followed for business receipts during demonetization period and non-demonetisation period while former have been added to the income and later treated as part of turnover and it requested to treat all the receipts at par.
That appellant received payments from interstate customers on occasion of Diwali which falls in November and same has been deposited in bank accounts and were pan of turnover. So it is requested to treat these receipt, as part of turnover.
5. The appellant craves leave to alter or amend anyexisting ground or add a new ground which may be necessary or expedient in the interest of justice and fairplay.
381-Asr-2023 Abdul Rashid Shah, Harran, J&K 3
2. The appeal is time barred by 281 days. The Counsel of the Assessee has filed condonation of delay application, which is as under:-
381-Asr-2023 Abdul Rashid Shah, Harran, J&K 4
We have considered the reasons brought on record by the Assessee for delay in filing of the appeal and we condone the delay based on the reasons stated by the Assessee. The ld. DR did not object to it.
381-Asr-2023 Abdul Rashid Shah, Harran, J&K 5
4. At the very outset, the ld. Counsel for the Assessee submitted that the assessment order passed by the A.O. is an ex-parte order u/s 144 of the Act and the order passed by the ld. CIT(A) is also an ex-parte order.
The ld. Counsel submitted that the Assessee could not avail opportunity either before the Assessing Officer or before the ld. CIT(A) because the Assessee is an old person of 72 years without any computer knowledge or the knowledge to update the mail. Since the notice issued by the authorities below were sent on the portal of the Department, therefore, the Assessee could not see it and as such, the Assessee has not received any notice. Accordingly, the Counsel requested to remand this case back to the file of the A.O. for fresh assessment.
The ld. DR relied on the order of the CIT(A).
We have considered the request of the Assessee and the submissions filed before us by him. We have also considered the case laws brought on record by the Assessee and his request as under:-
“Therefore, in the interest of justice, the matter may please be remanded back to the AO to pass de-novo assessment after granting adequate and real opportunity of being heard, so that appellate should not get a feeling, that he never got an opportunity or was deprived of an opportunity to clarify the doubts of the assessing officer/decision maker., as laid by 381-Asr-2023 Abdul Rashid Shah, Harran, J&K 6
The Hon'ble Delhi High Court in the case of "Bharat Aluminium Company Ltd. vs. Union of India",
The case is squarely covered by Coordinate Amritsar Bench Decisions in following case-
Abdul Hamid Malik vs. DCJT, in dated 17/03/2023, assessment year 2017-18
Mohammad Maqbool Sofi Kremshora, Budgaml.
Assessment Year: 2017-18 dated 29/05/2023
3. Abdul Aziz Dar Prop. M/s Al-Hilal Brick Kil dated 09/06/2023 assessment year 2011 -12
Since no real opportunity was granted to the appellate, and the assessment order being ex-party, therefore assessment order is bad in law.”
After going through the submissions of the Assessee made before us and considering the request of the ld. Counsel and during the proceedings before us, we are of the view that in the interest of justice, the Assessee should get an opportunity to bring evidence on file and submit the documents in support of his submissions and based on that, the Assessing Officer should pass a speaking order. Accordingly, we remand this case back to the Assessing Officer for passing an order de novo, in accordance with law, on affording due and adequate
381-Asr-2023 Abdul Rashid Shah, Harran, J&K 7 opportunity of hearing to the Assessee. The Assessee, no doubt, shall cooperate in the fresh proceedings before the A.O. All pleas available under the law shall remain so available to the assessee. Ordered accordingly. 8. In the result, appeal is allowed for statistical purposes. Order pronounced on 15.01.2025