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Facts
The assessee appealed against an order passed by the Ld. CIT(A) which was ex-parte. The assessee contended that notices were not properly communicated due to technical issues, preventing a response. The assessee also argued that the Ld. CIT(A) erred by not considering the facts and grounds of appeal, particularly regarding the cash deposit and source of funds treated as unexplained credit.
Held
The Tribunal noted that the assessee had been given multiple opportunities to respond but failed to do so. However, it also acknowledged that the Ld. CIT(A) is required to pass a reasoned order under section 250(6) of the Income-tax Act, 1961, even in cases of non-compliance. Therefore, the Tribunal decided to restore the matter back to the Ld. CIT(A) for a fresh decision.
Key Issues
Whether the ex-parte order passed by the Ld. CIT(A) without deciding on merit is sustainable, and whether the assessee should be granted an opportunity to present their case.
Sections Cited
250(6)
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Income Tax Appellate Tribunal, MUMBAI BENCH “D” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
This appeal has been preferred by the assessee against order dated 02.08.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2011-12, raising following grounds:
Ground: 1)The learned CIT (Appeal) issued notices on 29.01.2021, 11.07.2024 and 24.07.2024 however the said
Maqsood Ahmed Solanki 2 notices were not communicated to the appellant due to technical notices were not communicated to the appellant due to technical notices were not communicated to the appellant due to technical issue therefore no response was submitted. issue therefore no response was submitted. Appellant pray to Appellant pray to give a chance of hearing so he can submit the response. give a chance of hearing so he can submit the response. give a chance of hearing so he can submit the response. 2) The learned CIT (A) have erred without considering the fact 2) The learned CIT (A) have erred without considering the fact 2) The learned CIT (A) have erred without considering the fact and grounds of appeal
. while doing so the learned CIT(A) and grounds of appeal
. while doing so the learned CIT(A) and grounds of appeal. while doing so the learned CIT(A) amongst others failed to appreciate that: (a) The Appellant ha amongst others failed to appreciate that: (a) The Appellant ha amongst others failed to appreciate that: (a) The Appellant has made Cash deposit of Rs. 19,50,000/ made Cash deposit of Rs. 19,50,000/- from the available opening from the available opening of cash Balance & withdraw from Bank A/c but the Learned A.O. of cash Balance & withdraw from Bank A/c but the Learned A.O. of cash Balance & withdraw from Bank A/c but the Learned A.O. has considered wrong Bank Balance on estimation basis and has considered wrong Bank Balance on estimation basis and has considered wrong Bank Balance on estimation basis and treated as unexplained Credit u/s 68. (b) The Appellant has treated as unexplained Credit u/s 68. (b) The Appellant has treated as unexplained Credit u/s 68. (b) The Appellant has submitted the details of sources of Fund (i.e. Cash and Loan the details of sources of Fund (i.e. Cash and Loan the details of sources of Fund (i.e. Cash and Loan Parties) from which the property is being purchased, the Ld A.O. Parties) from which the property is being purchased, the Ld A.O. Parties) from which the property is being purchased, the Ld A.O. did not appreciated the submission and raised the question on did not appreciated the submission and raised the question on did not appreciated the submission and raised the question on genuiness of the Submission and considered the Source of Fund genuiness of the Submission and considered the Source of Fund genuiness of the Submission and considered the Source of Fund as Unexplained c as Unexplained credit
2. At the outset, the Ld. counsel for the assessee submitted the At the outset, the Ld. counsel for the assessee submitted the At the outset, the Ld. counsel for the assessee submitted the impugned order by the Ld. CIT(A) has been passed ex-parte without impugned order by the Ld. CIT(A) has been passed ex impugned order by the Ld. CIT(A) has been passed ex deciding the issue on merit and therefore, matter may be restored deciding the issue on merit and therefore, matter may be restored deciding the issue on merit and therefore, matter may be restored back for deciding afresh. back for deciding afresh.
We have heard rival sub We have heard rival submission of the parties and perused the mission of the parties and perused the relevant material on record. The Ld. CIT(A) has decided the issue relevant material on record. The Ld. CIT(A) has decided the issue relevant material on record. The Ld. CIT(A) has decided the issue observing as under:
“4.2 During this appeal proceeding various notices were issued u/s During this appeal proceeding various notices were issued u/s During this appeal proceeding various notices were issued u/s 250 of IT ACT 1961 for hearing as under: 250 of IT ACT 1961 for hearing as under: Date of sending Hearing date Hearing date DIN Remarks Remarks hearing notice fixed 29/01/2021 15/02/2021 15/02/2021 ITBA/NFAC/F/APLJ/2020- Non compliance Non compliance 21/1030185589(1) 11/07/2024 18/07/2024 18/07/2024 ITBA/NFAC/F/APL_1/2024- Non compliance Non compliance 25/1066601518(1) 24/07/2024 31/07/2024 31/07/2024 ITBA/N FAC/F/APLJ /2024- Non compliance Non compliance 25/1066976834(1)
Maqsood Ahmed Solanki 3 The appellant has already been given three opportunities in past and The appellant has already been given three opportunities in past and The appellant has already been given three opportunities in past and on none of the occasion, the appellant submitted any response. on none of the occasion, the appellant submitted any response. on none of the occasion, the appellant submitted any response. Ther^ is no gainsaying that once the appeal is filed by the appellant, Ther^ is no gainsaying that once the appeal is filed by the appellant, Ther^ is no gainsaying that once the appeal is filed by the appellant, it is obligatory on its part to purposefully and co obligatory on its part to purposefully and cooperatively "pursue operatively "pursue the same in a worthwhile manner, which the appellant has evidently the same in a worthwhile manner, which the appellant has evidently the same in a worthwhile manner, which the appellant has evidently failed to do, 4.3 From the above conduct of the appellant, it is evident that the 4.3 From the above conduct of the appellant, it is evident that the 4.3 From the above conduct of the appellant, it is evident that the appellant is no more interested in pursui appellant is no more interested in pursuing appeal. The Hon'ble ng appeal. The Hon'ble Supreme Court in the case of CIT Vs B. N. Bhattacharjee and others Supreme Court in the case of CIT Vs B. N. Bhattacharjee and others Supreme Court in the case of CIT Vs B. N. Bhattacharjee and others [1979] {10 CTR 354) observe that preferring an appeal, means [1979] {10 CTR 354) observe that preferring an appeal, means [1979] {10 CTR 354) observe that preferring an appeal, means effectively pursuing it. Viewed thus, it is presumed that the appellant effectively pursuing it. Viewed thus, it is presumed that the appellant effectively pursuing it. Viewed thus, it is presumed that the appellant has no further cogent reasoning o has no further cogent reasoning or/and evidence to substantiate the r/and evidence to substantiate the grounds taken in this impugned appeal. The onus is on person grounds taken in this impugned appeal. The onus is on person grounds taken in this impugned appeal. The onus is on person making the claim, and the primary responsibility/onus/burden for making the claim, and the primary responsibility/onus/burden for making the claim, and the primary responsibility/onus/burden for proving the claim made before the tax authorities (Assessing proving the claim made before the tax authorities (Assessing proving the claim made before the tax authorities (Assessing Officers/Appellate Authorities) li Officers/Appellate Authorities) lies with the assessee/appellant. In es with the assessee/appellant. In the present case, the appellant has not been able to even discharge the present case, the appellant has not been able to even discharge the present case, the appellant has not been able to even discharge the primary onus/burden statutorily & judicially cast upon him to the primary onus/burden statutorily & judicially cast upon him to the primary onus/burden statutorily & judicially cast upon him to substantiate the claims made in the grounds of appeal in spite of substantiate the claims made in the grounds of appeal in spite of substantiate the claims made in the grounds of appeal in spite of adequate time and opp adequate time and opportunities given as .brought out in the above ortunities given as .brought out in the above paras. In view of above no deviation in the order of the AO is seen to be In view of above no deviation in the order of the AO is seen to be In view of above no deviation in the order of the AO is seen to be necessary therefore the order of the assessing officer passed under necessary therefore the order of the assessing officer passed under necessary therefore the order of the assessing officer passed under section u/s 143(3) r.w.s 147 of the I.T. Act, 1961 is upheld. section u/s 143(3) r.w.s 147 of the I.T. Act, 1961 is upheld. section u/s 143(3) r.w.s 147 of the I.T. Act, 1961 is upheld. Consequently, the grounds raised by the appellant are dismissed. uently, the grounds raised by the appellant are dismissed.” uently, the grounds raised by the appellant are dismissed. 3.1 We find that though the assessee did not make any We find that though the assessee did not make any We find that though the assessee did not make any compliance of the notice of hearing sent by the Ld. CIT(A) but the compliance of the notice of hearing sent by the Ld. CIT(A) but the compliance of the notice of hearing sent by the Ld. CIT(A) but the Ld. CIT(A) under the provisions of section 250(6) of the Income-tax Ld. CIT(A) under the provisions of section 250(6) of the Income Ld. CIT(A) under the provisions of section 250(6) of the Income Act, 1961 (in short ‘the Act’) is required to pass a reasoned and Act, 1961 (in short ‘the Act’) is required to pass a reasoned and Act, 1961 (in short ‘the Act’) is required to pass a reasoned and speaking order on the grounds of appeal raised by the assessee ing order on the grounds of appeal raised by the assessee ing order on the grounds of appeal raised by the assessee even in case non-compliance on the part of the assessee. Therefore, compliance on the part of the assessee. Therefore, compliance on the part of the assessee. Therefore, we feel it appropriate to restore the matter back to him for deciding we feel it appropriate to restore the matter back to him for deciding we feel it appropriate to restore the matter back to him for deciding afresh. The assessee is directed to afresh. The assessee is directed to make compliance of the n compliance of the notices issued by the Ld. CIT(A). The grounds raised by the assessee are issued by the Ld. CIT(A). The grounds raised by the assessee are issued by the Ld. CIT(A). The grounds raised by the assessee are accordingly allowed for statistical purposes. accordingly allowed for statistical purposes.
Maqsood Ahmed Solanki 4 ITA No. 4257/MUM/2024
In the result, the appeal of the assessee is allowed for In the result, the appeal of the assessee is allowed for In the result, the appeal of the assessee is allowed for statistical purposes. statistical purposes.
Order pronounced in the open Court on nounced in the open Court on 18/10/2024. /10/2024.