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Facts
The assessee's appeal was filed against an ex-parte order of the CIT(A) which partly allowed the appeal. The CIT(A) dismissed additions related to relinquishment of right in property but restricted additions on account of cash deposits. The assessee contended that notices were not properly served and they were unaware of the proceedings.
Held
The Tribunal noted that the assessee had been pursuing the appeal in a casual and cavalier manner and had been ex-parte before the lower authorities. However, considering the circumstances, the Bench decided to give the assessee one more chance to contest the case before the AO for fresh adjudication. A cost of Rs. 2,000/- was imposed on the assessee for lethargic and negligent action.
Key Issues
Whether proper notice was served to the assessee for the proceedings before the CIT(A) and whether the ex-parte order was justified.
Sections Cited
69A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES, ‘’SMC” JAIPUR
Before: Hon’ble SHRI SANDEEP GOSAINvk;dj vihy la-@ITA No. 270/JP/2024
ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 09-01-2024, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2012-13 raising therein following the grounds. ‘’1. That on the facts and in the circumstances of the case the Ld. CIT(Appeals), NFAC is wrong, unjust and has erred in law and facts in 2 SHRI RAJENDRA PRASAD GATHALA VS ITO, WARD 4(2), JAIPUR confirming the addition amounting to Rs. 1 ,87,500/- on account of undisclosed income from relinquishment of right in property and treated as the income of the assessee. The addition of Rs. 1 ,87,500/ made to the income of the appellant on this count is wrong, unwarranted and bad in law. Kindly delete the addition.
That on the facts and in the circumstances of the case the Ld. CIT(Appeals), NFAC is wrong, unjust and has erred in law and facts in confirming the addition amounting to Rs. 22 ,78,850/- on account of undisclosed cash deposit u/s. 69A of the I.T. Act, 1961 and treated as the income of the assessee. The addition of Rs. 22 ,78,850/- made to the income of the appellant on this count is wrong, unwarranted and bad in law. Kindly delete the addition.’’ 2.1 At the outset of the hearing, the Bench noted that the ld. CIT(A) partly allowed the appeal of the assessee by passing an ex-parte order as under:- ‘’6.2 On Merits: In the absence of any submission Ground No. 1& 2 of the appeal regarding re-opening and addition on relinquishment of right in property are ‘Dismissed’ 6.3 Ground No. 3 of the appeal is against addition of Rs.25,78,850/- on account of cash deposits. In the absence of any further submission there is no reason to deviate from the order of the AO. However, various courts have given allowance for past savings and cash in hand. In view of the facts of the case it will be reasonable to give allowance of Rs. 3,00,000/- on this account. Accordingly, the addition is restricted to Rs. 22,78,850/-. The grounds of appeal
are 'Partly Allowed".
7. In the result, the appeal of the appellant for the A.Y. 2012-13 is 'Partly Allowed’ 2.2 During the course of hearing, the ld. AR of the assessee filed an affidavit communicating his grievance as under:- ‘’2. That while submitting the Form 35 online, I provided the email and address of my counsel (i.e. 611, Fifth Floor, Apex Mall, Tonk Road, Lal Kothi, Jaipur- 302015 and capooniarsnew@gmail.com) in Point No. 17 of Form No. 35 for communication of the hearing notices as I am 3 SHRI RAJENDRA PRASAD GATHALA VS ITO, WARD 4(2), JAIPUR not viewing my email regularly (i.e. rajendra.p.gathala@gmail.com).
That only one email regarding Enablement of communication was sent on the email address as provided by me in Point No. 17 of Form No. 35 on 04.11.2022 (i.e. capooniarsnew@gmail.com).
Thereafter, all the 3 hearing notices dated 04-09-2023, 16-10-2023 and 15.12.2023 issued by Ld. CIT (Appeals), NFAC were not communicated to the email address given in Point No. 17 of Form No. 35
That during the proceeding before Ld. CIT (Appeal), NFAC sent all the notices regularly on my email address rajendra.p.gathala@gmail.com and that was not viewed by me.
That I was in impression that when the case fixed for hearing, then the hearing notice will communicate on email and postal address as provided by me in Point No. 17 of Form No. 35 (i.e. capooniarsnew@gmail.com).
That my counsel informed me about the ex-parte order for dismissal of appeal by Ld. CIT (Appeals), NFAC, when my counsel viewed on portal.
Therefore, I was unaware about the proceedings and the non compliance was due to unaware about the hearing notices issued by Ld. CIT (Appeals), NFAC because notices were not sent on the email/postal address mentioned in Point No. 17 of Form No. 35.
4 SHRI RAJENDRA PRASAD GATHALA VS ITO, WARD 4(2), JAIPUR It is also noted that the ld. AR of the assessee while arguing the case submitted that the ld. CIT(A) has not sent the notices at both the E-Mail Address provided by the assessee mentioned at Column No. 17 and Form 35. 2.3 On the other hand, the ld.DR supported the order of the ld. CIT(A). 2.4 The Bench after perusal of the records observed that the notices as required were to be issued to the assessee by the ld. CIT(A) on the E-Mail address as provided by the ld. CIT(A) and said fact has not been disputed by the ld. AR of the assessee as well. Although two e-Mail addresses i.e. one of the assessee and other one of the ld.AR has been mentioned in Form 35 but it is an admitted fact that notices were issued and served on E-Mail address of the assessee. Therefore, the contention of the ld. AR that notices were to be issued and served by the ld. CIT(A) on both the E-Mail i.e. one of the assessee and second of the ld. AR is without any merit. In the Bench view, the purpose of issuing notice to make the assessee aware regarding pendency of the appeal and to provide the opportunity of hearing to the assessee. In this regard, it is noticed that the assessee was duly served upon the notice on E-Mail which has been mentioned in the Form 35. Therefore, there is no reason as to why the assessee could not put appearance before the ld. CIT(A). Moreover, the Bench observed that the assessee was ex- 5 ITA NO. 270/JP/2024 SHRI RAJENDRA PRASAD GATHALA VS ITO, WARD 4(2), JAIPUR parte through out before the lower authorities. Therefore, the conduct of the assessee shows that he had been pursuing the appeal in casual and cavalier manner. In this view of the matter, the Bench feels that one more chance may be given to the Assessee to contest the case before the AO for afresh adjudication and the assessee will submit the necessary documents / evidences concerning the above mentioned appeal. Thus the appeal of the assessee is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing. However, for lethargic and negligent action on the part of the assessee, a cost of Rs.2,000/- is imposed on the assessee and the same may be deposited in the Prime Minister Relief Fund and copy of the same shall be submitted to the AO for proof and thus the appeal of the assessee is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing. Thus, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings and the appeal of the assessee is allowed for statistical purposes. 2.3 Before parting, the Bench makes it clear that Bench decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by AO independently in accordance with law.