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

आदेश / O R D E R

PER AMITABH SHUKLA, A.M :

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.