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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
This appeal by assessee is directed against the order dated 26.09.2023 of the Commissioner of Income Tax (Appeal)- National Faceless Appeal Centre (NFAC) Delhi for A.Y.2012-13.
None has appeared on behalf of the assesse when this appeal was called for hearing despite the notice was issued to the assessee. Accordingly bench proposes to hearing and disposed of this appeal ex-parte.
ITANo.19/Ind/2024 Narayan Singh Rajput 3.There is a delay of 47 days in filing the present appeal. The assessee has filed the affidavit to explain the cause of delay. The relevant part of the affidavit in para 4 to 9 are reproduced as under:
“4. That all the notices in relation to this assessment proceedings were issued on my old address Gram Mohiniya Dham, Tehsil Khalwa, District Khandwa, Madhya Pradesh. However, I had to shift my residence due to compulsory acquisition of land by the Government being the back waters of river Narmada. My new address is Ward No.2, Talab Mohalla, In front of Degree College, Mundi, District Punasa. Hence, the notices issued by the Ld. AO remained to be complied with. Accordingly, the assessment proceedings were completed ex- parte.
5. That in the e-filed Form 35, against the question 'Whether notices/communication may be sent on email?', it was specifically mentioned as 'NO'. Despite this, the Ld. CIT(A) issued all the three notices on email.
That since I am not technology savvy and illiterate, these three notices remained to be complied by me.
That I received tax recovery notice on 18.10.2023. It was only at this juncture that I checked my email id and it came to my knowledge that the order has been passed by Ld. CIT(A) on 26.09.2023 by dismissing my appeal.
8. That on consultation with legal professional, it was advised that an appeal can be preferred before the Hon'ble ITAT Indore Bench within a time limit of 60 days from the date of receipt of the order of Ld. CIT(A). The time limit of 60days expired on 25.11.2023. Accordingly, the appeal is being filed now before the Hon'ble ITAT Indore Bench.
It is most humbly prayed that I have every intention to pursue the matter with all seriousness. I cannot be made to suffer for the lapses of being technology savvy, despite specific mention that the notices should not be sent through email. Page 2 of 6
ITANo.19/Ind/2024 Narayan Singh Rajput Therefore, in the interest of natural justice, good conscience and equity, the delay in filing appeal may please be condoned.” 3. On the other hand, Ld. DR has not objected to the condonation of delay.
On careful perusal and consideration of the cause of delay explained by the assessee in the affidavit we find that the assessee has shifted from address on which the three notices were issued by the AO as well as CIT(A) and therefore, the assessee did not receive the notices as well as the impugned order passed by the CIT(A). Only when the assessee received recovery notice on 18.10.2023 he came to know about impugned order passed by the CIT(A) and filed present appeal. We are satisfied that the assessee was having a sufficient cause of delay of 47 days in filing the present appeal. Accordingly in the facts and circumstances of the case and interest of justice, we condoned delay in filing the present appeal. The assessee has raised following grounds:
“1. On the facts and circumstances of the case and applicable law Ld. CIT(A) erred in sustaining the assessment order passed by Ld. AO under section 144 rws 147 which is contrary to the material on records and provisions of the Act, unjust and bad in law.
2. On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in not providing the copy of the reasons to believe recorded to issue notice u/s 148.
On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in not providing the copy of the approval obtained for issuing notice u/s 148.
ITANo.19/Ind/2024 Narayan Singh Rajput 4. On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in sustaining addition made on account of unexplained cash deposit in the savings bank account u / s 69A of Rs. 41,00,000.
5. On the facts and circumstances of the case and applicable law, both the Ld. AO and the Ld. CIT(A) erred in not giving reasonable opportunity of being heard.”
Ld. DR has fairly submitted that since the assessment order was passed on best judgment basis and the CIT(A) has also dismissed the appeal of the assessee for non-prosecution therefore, the matter may be remanded to the record of the AO for fresh adjudication after giving one more opportunity to the assessee to furnish the relevant record and explanation for source of cash deposited in the bank account.
6. On perusal of the assessment order we find that the AO has passed ex-parte order u/s 144 r.w section 147 of the Act when there was no response to the various notices issued by the AO and consequently the AO made an addition of cash deposit in the bank account of Rs.41,00,500/-. The assesse challenged the action of the AO before the CIT(A) but the appeal of the assessee was dismissed for non-prosecution. It is manifest from the impugned order that the CIT(A) has dismissed the appeal of the assessee in limine without deciding the grounds of appeal on merits.
6.1 We further note that the CIT(A) has issued three notices to the assesse but there was no compliance on behalf of the assessee and ITANo.19/Ind/2024 Narayan Singh Rajput consequently the CIT(A) has dismissed the appeal of the assesse for non-prosecution in para 4.1 to 4.4 as under:
“4.1 Reference is made to the decision of Hon'ble Supreme Court in the case of CIT Vs. BN Bhattacharya (1997) 118 ITR 461 (SC), in which the Hon'ble Apex Court while dealing with the issue of prosecution of appeal has stated that- "Preferring an appeal means more than formally filing it but effectively pursuing it". 4.2 The Delhi Tribunal in CIT Vs. Multiplan India Pvt. Ltd as reported in 38 ITD 320 (Delhi) when faced with a similar situation of non- prosecution of appeal, dismissed the appeal of revenue. 4.3 Reliance is also placed in the case of Vipul Logistic & Warehousing (P) Ltd Vs. ITO, wherein the Hon'ble Delhi ITAT has confirmed even the order of CIT(A) who dismissed the appeal of the taxpayer when there was no response to the notices issued. The observations and decision of the Hon'ble ITAT are as under: "We have heard rival submissions and have gone through the entire material available on record. In the grounds filed before us, assessee has not raised any such ground about the assessment being time barred. Therefore, since the plea raised by the assessee does not arise out of its grounds of appeal
, the same is dismissed. We see no infirmity on the order of CIT(A) which is passed ex-parte due to deliberate non-cooperation of the assessee. Therefore, the assessee's appeal is dismissed." 4.4 In view of these facts, I am of the opinion that no interference is called for in the AO's order and therefore, the grounds of appeal are dismissed.”
7. Hence, the AO as well as the CIT(A) has passed respective orders ex-parte due to non-appearance/compliance on behalf of the assessee to be notices issued them. The assessee has explained the cause of non-appearance as the notices were issued to the old address from where the assessee has already shifted. Accordingly in ITANo.19/Ind/2024 Narayan Singh Rajput the facts and circumstances of the case and interest of justice, we are of the considered view that the assessee be granted one more opportunity to submit supporting evidence to explain source of cash deposited in the bank account. Hence, the impugned order is set aside and the matter is remanded to the record of the AO for fresh adjudication after verification and examination of the supporting evidences to explain the source of cash deposit to be filed by the assessee. Needless to say the assessee be given an appropriate opportunity of hearing before passing fresh order
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 09 .05.2024.