MOHAMMAD IRFAN MOHAMMAD AHSAN SHAIKH,MUMBAI vs. ITO 20 (2)(2), MUMBAI

This appeal, filed by the assessee, being 29th March, 2016 passed by learned Commissioner of Income Tax (Appeals)- 32, Mumbai (hereinafter called “the CIT(A)”), for the assessment year 2012-13, the appellate proceedings before the learned CIT(A) arising from the assessment order dated 13th January, 2015 passed by learned Assessing Officer ( hereinafter called “ the AO”) u/s 144 of the Income-tax Act, 1961 (Hereinafter called “the Act”).

The grounds of appeal raised by the assessee in memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called “the tribunal”) read as under:-

Brief facts of the case are that assessee has derived income from salary and income from other sources. The case was selected for scrutiny and accordingly notice u/s 143(2) of the Act was issued on 8th August, 2013. However, the assessee did not appear before the A.O. despite several notices issued by the AO u/s 142(1), 144 r.w.s. 142(1) of the Act as detailed below:-

Aggrieved by the assessment order dated 13-01-2015 passed by the A.O. u/s 144 of 1961 Act, the assessee carried the matter in appeal before the ld. CIT(A).

Before the ld. CIT(A) also, the assessee did not appear despite several opportunities given by the ld. CIT(A) wherein notices were issued by learned CIT(A) dated 27-04-2015, 02-11-2015 and 22-02-2016 fixing the dates of hearing of the appeal . Since the assessee did not comply with the aforesaid notices, the ld. CIT(A) dismissed the appeal of the assessee ex-parte and all the additions made by the A.O. were confirmed by learned CIT(A) , vide appellate orders dated 29-03-2016. While passing appellate orders dated 29- 03-2016 , the learned CIT(A) considered the statement of fact filed by the assessee wherein it was stated that no effective hearing was given by the AO to the assessee ,despite accountant of the assessee and CA of the assessee Sh D. A. Kadia from M/s A G Kadia & Co. entering appearance before the AO and explaining the case of the assessee. It is claimed that the said authorized representative were asked by the AO to file certain details , and proceedings were adjourned by the AO without giving any specific date. It was submitted that without waiting for the said details , the AO proceeded to pass an ex- parte order vide best judgment assessment vide orders dated 13-01-2015 passed u/s 144 of 1961 Act wherein it is recorded that none appeared on behalf of the assessee.

Aggrieved by the appellate orders dated 29-03-2016 passed by learned CIT(A), the asseseee filed an appeal before the Tribunal.

During hearing before the Tribunal, none appeared on behalf of the assessee when the appeal was called for hearing, therefore, we proceed to dispose of the appeal after hearing ld. D.R. . The learned DR has placed reliance on the appellate orders of learned CIT(A) and contended that the assessee has not entered appearance before the authorities below as well before tribunal.

We have considered the submissions of learned DR and perused the material on record. We find that one of the grounds raised by the assessee in the grounds of appeal filed with the tribunal is that the assessee is a physically handicapped person and cannot move out without an escort, hence, the assessee could not attend the assessment proceedings before the AO as well appeal proceedings before learned CIT(A). It is averred in grounds of appeal that the person who was entrusted with attending the appeal proceedings did not live up to the trust placed by the assessee in him and hence high pitched assessments were framed ex-parte against the assessee. It was stated in the statement of fact filed before the learned CIT(A) that no effective hearing was given by the AO to the assessee ,despite accountant of the assessee and CA of the assessee Sh. D. A .Kadia from M/s A G Kadia & Co. entering appearance before the AO and explaining the case of the assessee. It is claimed that the said authorized representatives were asked by the AO to file certain details and proceedings were adjourned by AO without giving any specific date. It was submitted that without waiting for the said details , the AO proceeded to pass an ex-parte order vide best judgment assessment orders dated 13-01-2015 passed u/s 144 of 1961 Act wherein it is recorded that none appeared on behalf of the assessee. One more ground raised by the assessee in the grounds of appeal filed before the tribunal wherein the assessee requested that the Tribunal may grant one more opportunity to the assessee so that he can explain and establish his case on merits before the AO , hence it is prayed by the assessee that the matter may be remanded back to the A.O. so that the assessee can make due representation before the A.O. and the issues may be decided on merits by the AO . In ground No. 1 filed before the tribunal, the assessee has also claimed that an amount of Rs. 75,16,179/- deposited in cash in bank accounts with ICICI Bank and Bank of India , were partly out of certain loans raised by the assessee which were subsequently repaid while partly the same were out of sale of family jewellery. These contentions of the assessee need ITA 2321/Mum/2016 6 verification, enquiries as well examination by the AO on merits as the AO may deem fit to decide the matter on merits in accordance with law. Thus, we are setting aside the matter to the file of the AO for de-novo adjudication of all issues arising in the assessment on merits by the AO. We would like to clarify that this is an open remand as the orders were all passed by authorities below ex-parte, wherein it is averred by the Revenue that none appeared for the assessee and there has been no compliances on part of the assessee before the AO as well learned CIT(A). Needless to say that proper and adequate opportunity of being heard shall be given by the AO to the assessee in accordance with principles of natural justice in accordance with law. The assessee shall be allowed by the AO to furnish all necessary evidences and explanations in his defense which shall be admitted by the AO in accordance with law. We order accordingly.

In the result, appeal filed by the assessee in 2012-13 is allowed for statistical purposes as indicated above.