JAYASHRI PRAKASH KACHOLIYA,NAMAKKAL vs. ITO, WARD-1,, TIRUCHENGODE

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ITA 1537/CHNY/2024Status: DisposedITAT Chennai09 August 2024AY 2017-18Bench: SHRI ABY T VARKEY (Judicial Member), SHRI AMITABH SHUKLA (Accountant Member)4 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal noted that the CIT(A) passed an ex-parte order without proper hearing and that the assessment order might be bad in law due to the absence of a Section 143(2) notice. For ends of justice, the Tribunal decided to grant one more opportunity to the assessee.

What were the facts?

The assessee's appeal is against an ex-parte order passed by the CIT(A). The assessee contended that they were prevented from participating in the assessment proceedings and that the assessment order was void ab initio as it was passed without issuing a notice under Section 143(2).

What were the issues?

Whether the ex-parte assessment order is valid without a Section 143(2) notice and whether the assessee was denied a proper opportunity of hearing before the CIT(A).

Which sections of the Income-tax Act were involved?

Section 69A,Section 115BBE,Section 144,Section 143(2),Section 142(1)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, ‘D’ BENCH: CHENNAI

Before: SHRI ABY T VARKEY & SHRI AMITABH SHUKLA

Pronounced: 09.08.2024

आदेश / O R D E R

PER AMITABH SHUKLA, A.M :

1.

This appeal is filed against the order bearing DIN & Order No.ITBA/NFAC/S/250/2024-25/1064855808(1) dated 14.05.2024 of the Learned Commissioner of Income Tax [herein after “CIT(A), National Faceless Appeal Center[NFAC], Delhi, for the assessment years 2017-

18.

Through the aforesaid appeal the assesse has challenged order u/s 250 dated 14.05.2024 passed by NFAC, Delhi.

2.0 At the outset, the Ld.AR of the assesse pointed out that the impugned order of the Ld.AO is an ex parte order without hearing the assesse. According to the Ld.AR, the assesse was prevented from sufficient cause for non-participating in the assessment proceedings.

Therefore, he pleaded for one more opportunity before the Ld.AO.

The assesse also argued that the Ld.CIT(A) was not justified in confirming addition of Rs.33,22,039 u/s 69A r.w 115BBE made by the AO. The assesse also argued that the order of the Ld.AO is void ab initio as the same has been passed u/s 144 without issue of notice u/s 143(2).

3.0 Per contra, the Ld.DR doesn’t want us to give one more innings to the assesse.

4.0 We have heard both the parties and perused the material available on record. We note that the Ld.CIT(A) has passed an ex parte order qua assesse holding in para 5.3 of his order that details in support of cash deposits have not been filed before him or even the AO. According to the AO the assesse was issued notice u/s 142(1) on 09.03.2018 to file a return of income for AY-2017-18 on or before 31.03.2018. As per para-3 of AO’s order, the assesse electronically filed the return on 16.05.2018 which was consequently treated as invalid return. The assesse has argued that assessment has been completed u/s 144 which is permissible only when notice u/s 143(2) was issued and which remain un-complied. In this case, no such notice was issued and hence, the Assessment Order per se becomes bad in law. The arguments of the assesse are untenable on this issue.

Section 142(1) of the Act authorizes an assessing officer to issue notice to an assesse asking to file a return of income within a specified time. The assesse does not have any right to delay the filing of return therein. The action of Ld.AO qua treatment of assessee’s return of income, therefore is confirmed. It is the duty of the assesse to file the return in such time as specified in the notice. Section 144(1)(b) prescribes invocation of ex-parte assessment proceedings u/s 144 in cases where an assesse does not files the return of income u/s 142(1). Before us the assesse has also indicated availability of details alluding towards genuineness of cash deposits. The Ld.CIT(A) has not delved into this aspect of the matter. Be that as it may, it should be borne in mind that if an assesse is aggrieved by the Assessment Order, he has statutory right of appeal before the First Appellate Authority and such a right would be futile, if the First Appellate Authority doesn’t give proper opportunity of hearing to the assesse.

Therefore, for the ends of justice and fair play, we are inclined to give one more opportunity to the assesse, and therefore, set-aside the impugned orders of Ld CIT(A) and of the AO and restore the matter back to the file of the AO for assessment de novo. The assesse is directed to file all necessary written submissions/relevant documents to substantiate its case qua cash deposits in its bank accounts of Rs.33,22,039/- made u/s 69A during the demonetization period and the Ld.AO to pass a speaking AO order in accordance with law after hearing the assesse.

5.0 In the result, appeal filed by the assesse is allowed for statistical purposes. Order pronounced on 9th August, 2024 at Chennai.

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