DIPAK BUDHARAM SHARMA,MUMBAI vs. INCOME TAX OFFICER WARD 31(1)(4), MUMBAI

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ITA 1905/MUM/2024Status: DisposedITAT Mumbai24 July 2024AY 2017-18Bench: SHRI SATBEER SINGH GODARA (Judicial Member), SHRI OMKARESHWAR CHIDARA (Accountant Member)1 pages
AI SummaryPartly Allowed

What did the Tribunal hold?

The Tribunal noted that the CIT(A)/NFAC's order did not frame any points of determination nor provide a detailed discussion as required. Therefore, the Tribunal deemed it fit to restore the appeal back to the CIT(A)/NFAC for fresh adjudication.

What were the facts?

The assessee's appeal for assessment year 2017-18 arose against an order of the National Faceless Appeal Centre (NFAC) Delhi. The case was proceeded ex-parte as the assessee did not appear. The AO made additions based on cash deposits during demonetization and estimation of other deposits.

What were the issues?

Whether the lower authorities correctly passed ex-parte orders and made additions without proper investigation and opportunity to be heard.

Which sections of the Income-tax Act were involved?

Section 144,Section 144B,Section 68,Section 250(b),Section 69A

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Income Tax Appellate Tribunal, MUMBAI BENCH “H (SMC

Before: SHRI SATBEER SINGH GODARA & SHRI OMKARESHWAR CHIDARA

For Respondent: Ms. Dhivya Ruth J., Sr. D.R

O R D E R Per : Satbeer Singh Godara, Judicial Member: This assessee’s appeal for assessment year 2017-18 arises against the National Faceless Appeal Centre(NFAC)

Delhi’s DIN & order No.ITBA/NFAC/S/250/2023-

24/1047330554(1) dated 15.11.2022, in proceedings under section 144 of the Income Tax Act, 1961 (in short ‘the Act’).

2.

Case called twice. None appears at assessee’s behest. It is accordingly proceeded ex-parte.

3.

The assessee pleads the following substantive grounds in the instant appeal:

“1. The Id.AO erred in passing order u/s 144 of the Act without R following the SOP for section 144 and 144B of the Act;

2. The Id. AO erred in passing the assessment order without service- of notice thereby violated the principle of natural justice in passing ex-parte order.

3. The Id.AO erred in making addition of Rs 4,88,500/- in Rs.1000 and 500 denomination without doing any exercise at his own.

4.

The Id.AO erred in not investigating the issue as per the provisions of section 68 of the Act.

5. The fault at the end of Authorized Representative cannot be penalized the assessee as the assessee has engaged the AR and believed and relied upon the AR in good faith.

6 The Id.AO erred in making the addition on the information of CIBIL without confronting it to the assessee;

8.

The Id.AO erred in making addition when the assessee was not maintaining any account books, bank statement could not be constructed to be a books of account maintained by him. Merely on basis of information that assessee made a "cash deposit" in his saving bank account, no addition could be made as unexplained cash credit.

9.

The Id.CIT(A) erred in passing ex-parte order without verifying the facts that the notices sent to the assessee served or not;

10.

The Id.CIT(A) erred in issuing the notices during the COVID- 19 period from 20.3.2020 to 20.3.2022 when as per the Prime Minister's order there was complete Lock- down and the family was out of Mumbai;

11.

The Id.CIT(A) is also erred in passing an ex-parte order without giving opportunity of being heard despite the letter of assessee dated 20.11.2019 was available on record praying that the assessee wants to place on record bank statement and confirmation letter from the Dealor; thereby passed cryptic order.

12.

The Ld. CIT(A) erred in upholding the action of the Id.AO without passing the reasoned order.”

during he course of hearing in support of both the learned lower authorities’ findings that they have rightly made section 69A addition of Rs.4,88,500/- representing cash deposits during demonetization period followed by estimation of other similar deposits in the relevant previous year which have been assessed as business turnover @ 8%; resulting in addition of Rs.8,41,230/- in section 144 assessment dated 19.10.2019 as upheld in the lower appellate discussion. Faced with this situation, we invited the Revenue’s apt attention to the learned CIT(A)/NFAC’s lower appellate discussion in para 4, pages 2 to 3 wherein neither it had framed any points of determination nor we find any detailed discussion thereupon, as contemplated u/s 250(b) of the Act. We accordingly deem it as a fit case in the larger interest of justice to restore the assessee’s instant appeal back to the learned CIT(A)/NFAC for its afresh appropriate adjudication as per law preferably within three effective opportunities of hearing. It is made clear that all this subject to a rider that the assessee shall plead and prove all the relevant facts by filing his supportive evidence, at his own risk and responsibility. Ordered accordingly.

5.

Delay of 153 days is condoned as per assessee’s solemn

averments in condonation petition dated 15.04.2024 and going by Collector, Land Acquisition vs., MST Katiji [1987] 167 ITR

471 (SC) having settled the law long back with all such technical aspects which make way for the cause of substantial justice.

6.

This assessee’s appeal is allowed for statistical purposes

in above terms.

Order pronounced in the open court on 24.07.2024.

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