BHUPENDRA KUMAR PHOOLCHAND BIND,BHIWANDI vs. INCOME TAX OFFICER 1(1), KALYAN

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ITA 2598/MUM/2024Status: DisposedITAT Mumbai15 October 2024AY 2017-187 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the impugned order of the CIT(A) was passed ex parte and was unreasoned, violating the principles of natural justice. While the CIT(A) noted non-compliance by the appellant to notices issued for submission of documents/explanations, the order did not record whether these notices were actually served or received by the assessee. Furthermore, the CIT(A)'s reasoning in para 4.6 indicated a failure to consider any explanation or evidence in support of the grounds of appeal, as it stated that mere raising of grounds is insufficient without cogent evidence. The Tribunal found that the hearing provided was a formality and not an effective hearing, which is a sine qua non for upholding natural justice. Consequently, the CIT(A)'s order was set aside, and the matter was restored to the CIT(A) with a direction to decide afresh after providing an effective opportunity of hearing to the assessee within 60 days.

What were the facts?

The assessee, Bhupendra Kumar Phoolchand Bind, filed a return of income for Assessment Year 2017-18 declaring Rs. 4,00,820/-. Notices under sections 143(2) and 142(1) were issued and served. Despite multiple notices and a show cause notice for best judgment assessment under section 144, the assessee failed to provide explanations regarding cash deposits. A best judgment assessment was passed, adding Rs. 5,70,243/- (10% of Rs. 1,92,828/-) to the total income, and penalty proceedings were initiated. The assessee appealed to the CIT(A), who dismissed the appeal ex parte. The assessee is now appealing to the ITAT against the CIT(A)'s order dated 01.05.2024.

What were the issues?

1. Whether the CIT(A) erred in passing an ex-parte order and failing to adjudicate the grounds of appeal on merit, violating principles of natural justice? 2. Whether the CIT(A) erred in confirming the addition of Rs. 1,37,13,000/- under section 69A of the Income Tax Act, 1961? 3. Whether the CIT(A) erred in failing to consider that section 69A is not applicable to cash deposits received during the course of money transfer business carried on commission basis? 4. Whether the CIT(A) erred in confirming the addition of business income of Rs. 1,92,828/- on a presumed rate of 10% on bank deposits outside the demonetization period? 5. Whether the CIT(A) erred in confirming the charging of interest under sections 234A and 234B? 6. Whether the CIT(A) erred in confirming the invocation of penalty provisions under sections 271AAC, 271B, 271A, 270A, and 272A(1)(d)? Assessee's Contention: The Ld. AR argued that the impugned order was ex parte, and the assessee was not given an effective opportunity to present his case, leading to a miscarriage of justice. The matter should be restored to the CIT(A) for fresh adjudication. Revenue's Contention: The Ld. DR relied upon the order of the Ld. CIT(A).

Which sections of the Income-tax Act were involved?

Section 250,Section 143(2),Section 142(1),Section 144,Section 69A,Section 234A,Section 234B,Section 271AAC,Section 271B,Section 271A,Section 270A,Section 272A(1)(d)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI

Before: SHRI. PRASHANT MAHARSHI

O R D E R PER RAJ KUMAR CHAUHAN (J.M.): 1. This appeal is filed by the appellant/assessee against the order dated 01.05.2024 of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as the “CIT(A)”], passed under section 250 of the Income Tax Act, 1961 Bhupendra Kumar Phoolchand Bind; A.Y. 2017-18 [hereinafter referred to as “the Act”] for the A.Y. 2017-18, wherein an ex parte order has been passed and assessment order has been confirmed.

2.

The brief facts as culled out from the proceedings before the lower authorities are that the appellant is an individual and had e filed his return of income for A.Y.2017-18 on 22.03.2018 declaring total income at Rs. 4,00,820/-. Notice u/s 143(2) dated 21.09.2018 was issued vide ITBA Portal and duly served on the assessee. Subsequently, a notice under section 142(1) dated 22.05.2019 was issued through ITBA Portal and same was duly served on the assessee. Due to change of incumbent, 142(1) of the Act was issued to the assessee on 11.07.2019 along with questionnaire requesting the assessee to explain the source of cash deposited in the Banks alongwith supporting documentary evidence but the assessee failed to submit his explanation. Again, a fresh notice u/s. 142(1) of the Act was issued on 07.10.2019. In response to the said notice assessee has not submitted any explanation. Again on 19.11.2019, the assessee was given a show cause notice as to why the assessment should not be completed as per the provisions of section 144 of the Act in absence of any reply. Thus, best judgment assessment u/s. 144 of the Act was passed. Therein, an amount of Rs. 5,70,243/- being 10% of Rs. 1,92,828/- was added to the Bhupendra Kumar Phoolchand Bind; A.Y. 2017-18 total income of the assessee. Penalty proceedings were also initiated. The said order was challenged in appeal before the Ld. CIT(A) who has dismissed the appeal vide impugned order. The assessee is in appeal before us and has raised following grounds: -

1.

“On the facts and circumstances of the case and law, the Ld. CIT(A) erred in passing ex-parte order and without adjudicating grounds of appeal

on merit.

2. On the facts and circumstances of the case and law, the Ld. CIT(A) erred in confirming addition of Rs. 1,37,13,000/- under section 69A of Income Tax Act, 1961.

3. On the facts and circumstances of the case and law, the Ld. CIT(A) failed to consider that provisions of section 69A of Income Tax Act, 1961 are not applicable on deposits of cash received during the course of business of Money Transfer Activity carried on commission basis.

4. On the facts and circumstances of the case and law, the Ld. CIT(A) erred in confirming addition of business income of Rs.1,92,828/- on the presumed rate of 10% on amounts of deposit in bank account during the period other than demonetization period. ‘

5. On the facts and circumstances of the case and law, the Ld. CIT(A) erred in confirming charging of interest under section 234A and 234B of Income Tax Act, 1961.

6. On the facts and circumstances of the case and law, the Ld. CIT(A) erred in confirming invocation of Penalty provision under section 271AAC, 271B, 271A and 270A and 272A(1)(d) of Income Tax Act, 1961.

7. Appellant craves leave to add further grounds or to amend or alter the existing grounds of appeal on or before the date of hearing.”

Bhupendra Kumar Phoolchand Bind; A.Y. 2017-18 3. We have heard the Ld. AR on behalf of the assessee and Ld. DR on behalf of the revenue. The Ld. AR submitted that the impugned order is ex parte and no effective opportunity has been given to the assessee/appellant to present his case before the Ld. CIT(A) which has resulted into a miscarriage of justice and submitted that the matter may be restored to file of the Ld. CIT(A) and impugned order be set aside. The Ld. DR on the other hand relied upon the judgment of the Ld. CIT(A).

4.

We have considered the submissions and examined the record. Section 250 sub section 2(a) of "the Act" provides as under:

“Section 250 (2) The following shall have the right to be heard at the hearing of the appeal: - a. The appellant, either in person or by an authorised representative;” 5. It is evident from the provision that the hearing to be given is not a formality but an effective hearing is sine qua non for the purpose of upholding the principal of natural justice. We have examined the impugned order and in para no. 4 and 4.6 of the Ld. CIT(A) observed as under:-

4. “During the course of appeal proceedings, following notices were issued to the appellant on different dates as mentioned below for Bhupendra Kumar Phoolchand Bind; A.Y. 2017-18 submission of documents/explanation in support of grounds of appeal

raised: Sr. No. Date of Notice Compliance Remarks due date 1. 28.01.2021 12.02.2021 Non-Compliance 2. 12.03.2024 20.03.2024 Non-Compliance 3. 29.03.2024 08.04.2024 Non-Compliance 4. 09.04.2024 19.04.2024 Non-Compliance 4.6 It is trite that an appellant authority is essentially called upon to balance the two sides of an argument presented before him as held in Nirmal Singh and Others of the Hon’ble Punjab and Haryana High Court [Cr. No.3791 of 2013 (O&M) dated 01.05.2014]. The AO has passed the Assessment Order giving detailed findings. The appellant filed appeal against the impugned order and raised grounds of appeal. However, during the appellate proceedings, the appellant has not furnished any documentary evidence in support of facts submitted by him. Basically, mere raising of grounds of appeal is not sufficient to adjudicate the issues on merits. Therefore, in the absence of any reasonable, cogent and valid evidences/arguments/contentions advanced by the appellant in the instant appeal to counter the AO’s decision as contained in Assessment Order, I am unable to interfere with the action of the Assessing Officer. Therefore, all the grounds raised by the appellant in the present appeal are dismissed.”

6. It is thus evident from the above extract of the impugned order that since opportunities were provided for hearing by issuing notice, but there is nothing that the said notices issued were served or received by the assessee. Moreover, the decision in para no. 4 shows that it is not a reasoned order because the same has been passed without considering the 7. From these facts, we are of the considered opinion that the impugned order has been passed ex parte and is an unreasoned order and principal of natural justice has not been followed, for that reason the same is accordingly set aside. The matter is restored to the file of the Ld. CIT(A) with the direction to decide afresh after giving opportunity of effective hearing to the assessee/appellant who shall present his case before the Ld. CIT(A) within 60 days from this order.

8.

In the result, appeal filed by the assessee is allowed for statistical purposes in the above terms.

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