ABDUL KADAR MOHAMMAD IBRAHIM DOSANI,YAVATMAL vs. ITO - WARD - 1 YAVATMAL, AAYAKR BHAWAN

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ITA 128/NAG/2024Status: DisposedITAT Nagpur22 October 2024AY 2017-2018Bench: SHRI V. DURGA RAO (Judicial Member)5 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal held that the CIT(A) order was ex-parte and, to uphold principles of natural justice, a further opportunity should be granted. The matter was remitted to the Assessing Officer for fresh adjudication.

What were the facts?

The assessee, engaged in mobile recharge and handset business, made cash deposits during demonetisation. The Assessing Officer made additions under Section 69A for unexplained money and estimated business income. The CIT(A) dismissed the appeal ex-parte due to non-compliance by the assessee.

What were the issues?

Whether the CIT(A) order passed ex-parte without granting sufficient opportunity to the assessee is valid, and if the matter should be restored for fresh adjudication.

Which sections of the Income-tax Act were involved?

Section 69A,Section 144,Section 251

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR

Before: SHRI V. DURGA RAO

For Appellant: Shri Naresh Jakhotia
For Respondent: Shri Abhay Y. Marathe

The assessee has filed this appeal challenging the impugned order dated 17/01/2024, passed by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, [“learned CIT(A)”], for the assessment year 2017–18.

2.

The assessee has raised following grounds:–

“1. Whether the order passed by the Learned CIT (A) is in accordance with the principle of natural justice and after giving the fair & reasonable opportunity to the Appellant?

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2. Assessment Order as passed by the Assessing Officer and thereafter confirmed by the CIT (A) is improper, incorrect and unjustifiable and the addition needs to be deleted.

3.

On the facts and circumstances of the case & in law, the learned AO has grossly erred in making addition & CIT(A) has grossly erred in confirming the addition of Rs.7,76,440/- & Rs.7,00,000/- unexplained money under section 69A of the Income Tax Act-19610.

4.

Whether learned Assessing officer is right treating the amount as unexplained money without appreciating the submission during the course of the assessment proceeding. 5. Appellate crave to add, amend, modify, alter, revise, substitute, delete any or all grounds of appeal, if deemed necessary at the time of hearing of the appeal.”

3. The assessee is an individual carrying on business of mobile recharge vouchers and petty sale and purchase of mobile handsets and accessories. The assessee is assessed under section 144 of the Income Tax Act 1961 (“the Act”) whereby a total demand of ` 18,54,102, was raised. During demonetisation period, the assessee deposited ` 14,11,000, in Vijaya Bank Yavatmal and ` 7,00,000, in the Yavatmal Urban Co-operative Bank Ltd. Yavatmal. The cash sales of mobile handsets and accessories during pre– demonetisation period was ` 6,34,560. Excluding mobile voucher receipts, the Assessing Officer considered the above cash sales of ` 6,34,560, as explained and has made addition on account of unexplained money under section 69A of the Act. The Assessing Officer also made addition of ` 7,00,000, under section 69A on account of cash deposits during demonitisation in the Yavatmal Urban Cooperative Bank Yavatmal. The Assessing Officer further estimated income from business and profession at ` 2,06,325 @8% of ` 25,79,060. The Assessing Officer, while making the above addition, has not 3 Abdul Kadar Mohammad Ibrahim Dosani ITA no.128/Nag./2024 considered receipt on account of mobile recharge vouchers. Aggrieved, the assessee filed appeal before the first appellate authority.

4. The learned CIT(A) dismissed the appeal of the assessee by observing as under:–

“4. It is pertinent that in order to decide this appeal in a timely manner, a number of notices / communications/correspondences were made through ITBA portal to the appellant, viz., communications dated 14.01.2021, 08.12.2023, 18.12.2023 and 27.12.2023. However, there has been no compliances from the part of the appellant till date. There is no gainsaying that once the appeal is filed by the appellant, it is obligatory on its part to purposefully and co-operatively pursue the same in a worthwhile manner, which the appellant has evidently failed to do. Hence, in view of the aforesaid total non-compliance of the instant appeal on the part of the appellant, the instant appeal is adjudicated and disposed of, as under, ex-parte, primarily on the basis of documentation available on record. The appellant has failed to avail the opportunity to file / furnish the submissions / documents in support of the grounds of appeal though the appellant was offered for sufficient opportunity to file / furnish the submissions during the course of appellate proceedings. Furthermore, it is pertinent that the appellant has not sought any adjournment during the appellate proceedings.

5. In the result, the appeal of the appellant is dismissed.”

5.

During the course of hearing, the learned A.R. appearing for the assessee submitted that the learned CIT(A) passed an ex-parte order and prayed that one opportunity may be granted by restoring the matter to the file of the Assessing Officer to enable the assessee to substantiate its case before the Assessing Officer.

6.

On the other hand, the learned D.R. submitted that the learned CIT(A) despite granting sufficient opportunities, the assesse has not appeared before the learned CIT(A) and not filed relevant details. He strongly supported the orders passed by the learned CIT(A).

4 Abdul Kadar Mohammad Ibrahim Dosani ITA no.128/Nag./2024

7.

I have heard both the parties, perused the materials available on record and gone through orders of the authorities below. I find that though the learned CIT(A) gave opportunities to the assessee, ultimately, the order passed by him is an ex-parte order. Therefore, I am of the opinion that by following the principles of natural justice, one more opportunity should be given to the assesse to by restoring the appeal to the file of the Assessing Officer to enable the assessee to substantiate his case before the Assessing Officer. It is pertinent to mention here that in the event of assessment concluded under section 144 of the Act by the Assessing Officer and on appeal before the Tribunal, the matter, if required, has to be restored to the file of the Assessing Officer for denovo adjudication. Such amendment is made in the statute w.e.f. 1st October 2024. The recent amendment as contained in section 251 of the Act is reproduced below:–

“Provided that where such appeal is against an order of assessment made under section 144, he may set aside the assessment and refer the case back to the Assessing Officer for making a fresh assessment.”

8.

In view of the above, the order passed by the learned CIT(A) is set aside and remit the matter to the file of the Assessing Officer nd direct him to adjudicate the matter denovo after providing reasonable opportunity of being heard to the assessee. It is also directed that the assessee should not seek adjournment without there being a justified reason. Accordingly, all the grounds raised by the assessee in this appeal are allowed for statistical purposes.

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9.

In the result, appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open Court on 22/10/2024

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