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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
This appeal by assessee is directed against the order dated 19th July 2022 of the Commissioner of Income Tax (Appeal), National Faceless Appeal Centre, Delhi for A.Y.2016-17. The assesse has raised following grounds of appeal:
“1. On the facts and circumstances of the case, and in Law, the CIT Appeals, erred in confirming the addition of Rs. 23,00,346.00 of the Act which is bad at law.
ITANo.278/Ind/2023 Rajani Sharma 2. On facts and in the circumstances of the case the impugned order dated 19.07.2022 is illegal, vexatious, perverse and arbitrary. Therefore, the impugned order dated 29.05.2023 is liable to be vacated.
3. On facts and in the circumstances of the case, CIT(A) has erred in passing the impugned order dated 19.07.2022 without making proper enquiries, without providing effective opportunity of personal hearing, without issuing effective show cause notice specifically proposing to make any such addition, without adducing and providing adverse material, evidence, basis or statement, without providing effective rebuttal and cross examination, without providing draft assessment order and in gross violation of principle of natural justice, hence is liable to be quashed.
4. On facts and in the circumstances of the case, the order u/s 250 dated 19.07.2022 was passed by the CIT(A), ex- parte without providing the effective opportunity of hearing to the appellant and also, without following the mandatory procedure laid down in the Income Tax Act and therefore, the whole proceeding, in violation of provisions of the Act, is liable to be declared void.
5. On the facts and in the circumstances of the case, the notice issued u/s 143(2) dated 10.08.2018 on the basis of which the original assessment was done and the subsequent appeal has been filed is without jurisdiction and hence liable to be set-aside as non- est in law.
6. On the facts and circumstances of the case and in law the AO has erred in treating only 10.85 acres as agricultural land without providing proper opportunity to produce evidence in support of other agricultural land.
7. On the facts and circumstances of the case and in law the AO arbitrarily ascertained Rs. 36,000 per acre as the revenue per acre for calculating agriculture income.
On the facts and circumstances of the case the assessment order passed by AO has been framed without ITANo.278/Ind/2023 Rajani Sharma considering and properly appreciating the submissions made during the assessment proceedings.
On the facts and circumstances of the case the assessment order passed by AO has passed without giving a proper opportunity of being heard.
On facts and in circumstances of the case, the respondent is also wrong in raising illegal demands of tax, interest and penalties. Mechanically and perversely, all demands as well as penalty notices are liable to be quashed.
11. The appellant craves the leave to add, modify, amend or delete any of the grounds of appeal
at the time of the hearing and all the above grounds are without prejudice to each other.”
2. Since the appeal was filed after gap of around one year on 20th July 2023 against the impugned order dated 19th July 2022 the assessee was directed to explain the delay in filing the present appeal. Now the assesse has filed affidavit to explain reasons for time gap in filing the present appeal. The contents of the affidavit are reproduced as under:
“1. That, I am regularly assessed to income-tax under Permanent Account Number (PAN) - FCYPS5335B.
That, during the financial year 2015-16, relevant to the assessment year 2016-17, I was engaged in the business of trading in building materials and agricultural activities.
That, my husband, namely Shri Kishor Sharma, has been suffering from chronic kidney disease (End-Stage Renal Disease) since 2018, resulting in a complete kidney failure.
That, my husband requires regular haemodialysis due to his medical condition.
ITANo.278/Ind/2023 Rajani Sharma 5. That, we have no children or any other person to care for us, particularly my husband, who is enduring such a severe medical condition.
That, as on 18-12-2018, an assessment order under section 143(3) of the Income-Tax Act 2 1961, was passed in my case for the assessment year 2016-17.
7. That, being aggrieved by the said assessment order, an appeal was preferred by me before the Hon'ble Commissioner of Income-tax (Appeals) [in short, 'CIT(A)'], through a Chartered Accountant, CA. Nandan Narula.
8. That, while filing the aforesaid appeal in Form 35, the then counsel mentioned his email address for communication of notices. Consequently, notices under section 250 of the Income- Tax Act, 1961, were issued to the counsel's email address only. 9 That, in June'2023, a Letter dated 26-06-2023 was received by me through post, from the office of the Income-Tax Officer, Raisen. Through this letter, the Id. ITO required me to make the payment of an outstanding demand of Rs.14,36,790/- for the A.Y. 2016- 17, as the appeal in my case had got dismissed by the CIT(A) for the same assessment year.
10. That, through the aforementioned letter dated 26-06-2023, I became aware for the first time of the order passed by the learned CIT(A) in my case.
That, since the email ID for communication was that of the counsel, the notices as well as the Order under section 250 would have been sent to that email address only. However, the counsel neither informed me about the issued notices nor the order passed by the Id. CIT(A).
That, upon becoming aware of the Order under section 250 through the demand recovery letter dated 26-06-2023, I preferred an appeal before the Hon'ble Income-Tax Appellate Tribunal, Indore Bench, electronically, on 08-07-2023, through my earlier counsel, M/s. Bhupesh Khurpia & Associates of Bhopal. Page 4 of 8 ITANo.278/Ind/2023 Rajani Sharma 13. That, there was a delay of 306 days in filing the appeal with the ITAT, Indore, but I was completely unaware of the passing of the Order by the CIT(A) until I received the demand recovery notice from the Assessing Officer.
That, as I am the sole caretaker of my husband and due to his critical medical condition, I was unable to keep track of the pending litigation matters personally. 15.That, given my husband's severe medical condition and my role as his sole caregiver, 709 humbly request that the unintentional delay in filing the appeal be condoned on medical grounds.”
3. Ld. AR of the assesse has also filed medical certificate of husband of the assesse as well as copies of the demand notice issued by the AO which was served physically on the assesse in the month of July 2023. The Ld. AR has pointed that except demand notice dated 26.06.2023 other notices issued by the CIT(A) as well as impugned order were not served through postal or currier but the same were sent to the e-mail ID of the authorized representative as given in form 35 but due to over sight the authorized representative did not inform the assessee about the impugned order. Thus, Ld. AR has submitted that due to these circumstances where the husband of the assesse was suffering from kidney disease and assessee was busy in taking care of ailing husband as well as other business and domestic activities could not take the requisite steps to file the appeal before the demand notice dated 26.06.2023 was received by the assessee. Hence, the Ld. AR has submitted that the appeal of the assessee may be admitted for hearing on merits.
ITANo.278/Ind/2023 Rajani Sharma 4. On the other hand, ld. DR has raised no serious objection if the delay in filing the appeal is condoned.
We have considered rival submission and careful perused contents of the affidavit as reproduced above. The assesse has explained sufficient cause for delay in filing the present appeal and also produced relevant documents in support of this explanation which includes the screen shots of the income tax portal showing the notice issued by the CIT(A) to the e-mail ID of the authorized representative and only the demand notice was issued by the AO physically to the assesse thereafter the assesse has failed to file the present appeal prior to the receipt of demand notice. Accordingly the reasons explained by the assesse for filing the appeal belatedly are accepted and the appeal of the assesse is admitted for adjudication on merits.
6. Ld. AR has submitted that the CIT(A) has passed ex-parte order and confirmed the additions made by the AO. He has further pointed out that the AO has made addition of Rs.23,00,346/- as unexplained income by rejecting the claim of agricultural income of the assesse. The AO has found some discrepancy in the details filed by the assessee regarding the land taken by the assesse on lease (Kalinama) and CIT(A) has not decided the appeal on merits but the same was dismissed for want of prosecution and noncompliance of notice issued by the CIT(A). Thus, he has pleaded that the impugned order of the CIT(A) be set aside and the matter may be remanded to the record of the AO for fresh adjudication after
ITANo.278/Ind/2023 Rajani Sharma making proper inquiry and examination of the relevant record in support of the claim for agricultural income of the assesse.
On the other hand, Ld. DR has not raised serious objection if the matter is remanded to the record of the AO for fresh adjudication as the AO has recorded that the assessee has produced some wrong details regarding land taken on lease.
8. Accordingly in the facts and circumstances of the case and in the interest of justice, we are of the considered view that the assessee be given one more opportunity to produce supporting evidences of claim of agricultural income. Hence the impugned order of CIT(A) is set aside and matter is remanded to the record of the jurisdictional AO for fresh adjudication after giving an opportunity of hearing to the assessee to file relevant details as well as supporting evidences for agricultural income.
9 In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 27.06.2024.