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Facts
The assessee filed an appeal against the order of the CIT(A) which dismissed his appeal against an assessment order. The assessee had allegedly obtained bogus long-term capital gain by transacting in SVC resources limited. The Assessing Officer made additions under Section 143(3) and Section 68 of the Income-tax Act, 1961.
Held
The Tribunal noted that the assessee had made submissions to the CIT(A) within the due date, contrary to the CIT(A)'s finding that no submissions were made. The Tribunal also noted that the assessee had not represented their case before the Assessing Officer. Therefore, in the interest of justice, the issue was set aside to the file of the Assessing Officer.
Key Issues
Whether the CIT(A) erred in dismissing the appeal without considering the assessee's submissions and whether the assessment order passed by the AO without proper opportunity to the assessee was sustainable.
Sections Cited
143(3), 148, 144, 147, 68, 234A, 234B, 271(1)(c)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Naresh Mathurdas Dudhela (assessee /appellant) against the order passed by the National Faceless Appeal Centre, Delhi [the learned CIT (A)] for A.Y. 2011-12, dated 6th October, 2023, wherein the appeal filed by the assessee against the assessment order under Section 143(3) of the Income-tax Act, 1961 (the Act) dated 28th December, 2018, passed by the Income Tax Officer, Ward 33(4), Mumbai (the learned Assessing Officer) was dismissed and therefore, assessee is in appeal before raising following grounds of appeal:-
“Ground 1:
Ground 2:
The CIT (A) erred in stating that there is total non- compliance on the part of Appellant during the appeal proceedings as Appellant has filed the submission within the due date against the notice issued by the L.d. CIT (A).
Ground 3:
The Ld. CIT (A) erred in alleging that the Appellant is trading in Penny Stock without considering the fact that modus Operandi of Penny Stock or of Providing Bogus Accommodation Entry of LTCG/STCL/Business Loss does not fit in the case of Appellant and thereby confirmed the addition by completely relying on the findings of investigation department.
Ground 4:
The L.d. CIT (A) erred in confirming to the addition u/s 68 made by Assessing Officer as per the Assessment order without giving an appropriate opportunity to explain the case and passed the order in haste with a pre-determined mind-set.
Ground 5:
Ground 6:
The L.d. CIT (A) erred in not considering the fact and circumstances of the case and levying interest under 234A and u/s 234B of the Income Tax Act, 1961.
Ground 7:
The L.d. CIT (A) erred in not considering the fact and circumstances of the case and initiating penalty proceedings u/s 271(1)(c) of the Income Tax Act, 1961.
Being aggrieved by the said CIT (A) order of dismissing the appeal without considering the submission made; the Appellant hereby prefers this appeal before your Honour.
The Appellant craves to leave to add, amend, alter, classify, reclassify, delate or modify any of the above grounds of appeal and requests to consider each of the above grounds without prejudice to one another.”
The brief facts of the case shows that assessee has filed his return of income on 28th July, 2014 declaring total income of ₹2,57,450/-. The reopening notice was issued under Section 148 of the Income-tax Act, 1961 (the Act) on 27th March, 2018, for the reason that information is
Notice under Section 142(1) of the Act was issued to the assessee on 18th September, 2018, which was not responded. The show cause notice under Section 144 of the Act was also issued on 15th November, 2018. The assessee did not comply with the same. Therefore, the learned Assessing Officer made the addition of ₹31,44,858/- to the total income of the assessee being the sale proceeds of such shares under Section 68 of the Act and passed the assessment order under Section 144 of the Act read with section 147 of the Act on 28th December, 2018, determining the total income of the assessee at ₹34,02,310/-.
The assessee aggrieved with the same preferred the appeal before the learned Commissioner of Income-tax (Appeals). The assessee was also issued several notices on email id but same were not responded to and therefore, the appeal was decided on merits and the addition was confirmed. Therefore, against the appellate order assessee is in appeal.
Coming to the issue before the learned Assessing Officer, we find that the learned Assessing Officer has also passed an order under Section 144 of the Act and assessee could not submit the details before him. Therefore, neither before the learned CIT (A) nor before the learned Assessing Officer the facts of the case from the side of the assessee were represented.
Therefore, in the interest of justice the issue is set aside to the file of the learned Assessing Officer with a direction to the assessee to submit all the details. The learned Assessing Officer may consider the same and if require give opportunity of hearing to the assessee and decide the issue afresh. Accordingly, the appeal of the assessee is allowed as indicated above.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 27.06. 2024.