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Income Tax Appellate Tribunal, “SMC” BENCH, PUNE
Before: SHRI R.K. PANDA & MS. ASTHA CHANDRA
आदेश / ORDER
PER ASTHA CHANDRA, JM :
The appeal filed by the assessee is directed against the order dated 17.08.2023 of the Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi [“CIT(A)”] pertaining to Assessment Year (“AY”) 2014-15.
The assessee has filed this appeal with a delay of 182 days. The assessee has filed an application seeking condonation of delay in filing of the appeal. After perusal of the same, we are satisfied that the delay in filing of appeal is not intentional or deliberate but has occurred for the reasons mentioned in the application. Accordingly, the delay in filing of appeal is condoned and the appeal is admitted to be heard and disposed of on merits.
The assessee has raised the following grounds of appeal :-
1. The Ld. CIT(A) (NFAC) erred in passing Appeal order under sec. 250 of the Act, dt. 17-08-2023 which order is perverse not only to the facts of the case and also the provisions of the Act, 1961.
Facts a) The Ld. CIT(A) erred in communicating the notices under sec. 250 providing opportunity of being heard as mentioned in Para 5 of appeal order, the notices dt. 10-11-2022, 19-07-2022 and 01-08- 2023 requiring assessee to make submission on different Email_id on referring to 'personal information as mentioned in Appeal Memo Form- 35. Accordingly, the notices ought not to have been communicated on email_id 'kasat9@rediffmail.com and Telephone No. 772197480' which has categorically been denied as it was answered 'No' and it was specifically mentioned in Sr. No. 17 of Appeal Memo Form-35 dt. 11-09-2022, the notices may be sent to the appellant on the Address: Prop. Rokdeshwar colour Home. Near Market Yard, Main Road, Tal. Mantha, Dist. Jalna 431 504. It be held that the notices under sec. 250(1) providing opportunity of being heard to the appellant issued but communicated on different Email_id other than the address for communication i.e., the notices may be sent to the appellant vide Sr. No. 17 of Appeal Memo Form-35 that the said notices issued are invalid rendering the appeal order ab initio void and illegal. b) Under the facts and circumstances, it be held that the Ld. CIT(A) erred in stating that the appellant had nothing more to submit except for raising the ground by ignoring the grounds on the issues raised in Appeal Memo for adjudication in his appeal order. c) The Ld. CIT(A) further more erred stating on one side that he had decided to adjudicate the issue on merits of the case (Para 6 of Appeal order) but on the other side recorded the finding that the AO has rightly assessed an income of Rs.39,65,984/- by confirming the addition made by AO of Rs.36,79,554/- without adjudicating the case on issues raised in grounds of appeal
. On Legal Grounds as per Law: d) The appeal order passed by dismissing the issues raised in Ground No. 1 to 7 vide Para 7 and 8 of the order be held that it was passed contrary to the provision under sec. 250(6) of the Act, since the issues raised in grounds were not adjudicated and the order passed suggests that disposing of appeal is not in writing without pointing out findings for determination to arrive at the decision there on with the supporting reason for the said decision and hence be held that the said order passed under sec. 250 of the Act, is for non- prosecution of the appellant and hence, be remanded back to the file of CIT(A) (NFAC) in view of: 1) Ganesh Rangnath Gawate vs ITO, Ward 1(8), A'bad dt. 27-02-2024. ii) Daryapur Shetkari Ginning & Pressing Factory vs Asstt. CIT (2021) 319 CTR (Bom) 70 Jurisdictional Bombay High Court.
2. The appellant craves leave, add, amend, alter, substitute and modify the above grounds of appeal, if necessary, on the basis of written submissions and personal presentation to be made at the time of hearing.”
4. Briefly stated, the facts of the case are that the assessee is an individual. For AY 2014-15 he filed his return of income declaring total income of Rs.2,86,430/- on 18.11.2014. The case of the assessee was reopened u/s 147 of the Income Tax Act, 1961 (the “Act”) and accordingly notice u/s 148 of the Act was issued on 30.03.2021 which was duly served on the assessee. In response thereto, the assessee did not file his return of income. Thereafter, notice u/s 142(1) of the Act was issued on 27.11.2021 requiring the assessee to comply by 30.12.2021. Since, the assessee failed to respond to the notice issued u/s 142(1) of the Act as also the show cause notice issued on 22.03.2022, the Ld. Assessing Officer (“AO”) proceeded to complete the assessment on the basis of material available on record as best judgment assessment u/s 144 of the Act. The case of the assessee was reopened for the reason that the assessee had unexplained credits/cash deposits in his bank account with M/s. Shri Renuka Mata Multi State Urban Co-operative Credit Society Ltd. amounting to Rs.36,79,554/- during FY 2013-14 relevant to AY 2014-15 under consideration. In the absence of any explanation regarding the source of credits/cash deposits and failure on the part of the assessee to submit any documentary evidence during the assessment proceedings, the Ld. AO added an amount of Rs.36,79,554/- to the income of the assessee as unexplained money u/s 69A of the Act. He, therefore, completed the assessment on total income of Rs.39,65,984/- on 24.03.2022 u/s 144/144B r.w.s. 147 of the Act.
Aggrieved, the assessee filed an appeal before the Ld. CIT(A)/NFAC. The appeal was late by 141 days. The Ld. CIT(A) condoned the delay but dismissed the appeal for non-compliance of notice(s) of hearing by observing as under : “5. During the course of appellate proceedings vide notices dated 10.11.2022, 19.07.2023 and the final opportunity was given on 01.08.2023 and requested the appellant to file the submission by 08.08.2023. However no submissions were made during the entire appellate proceedings. The appellant during the appellate proceedings did not comply with the notices and hence made no submission in support of grounds of appeal. So it is held that the appellant had nothing more to submit except for raising the ground. 5.1 The Hon'ble ITAT in for the A.Y. 2002- 03 in the case of M/s Chhabra Land and Housing Ltd. after following the decision of Hon'ble Supreme Court in the case of B.N. Bhattachargee, 118 ITR 461 (SC) held that the appeal does not mean merely filing of the appeal but effectively pursuing it. Keeping in view of the aforesaid factual position, the appeal filed by the appellant is, therefore, decided on merits.
In the instance of the case the appellant failed to make any submissions in support of grounds of appeal, this gives rise to an undisputable conclusion that the assessee has got nothing more to say in this regard. I have gone through the record before me and based on the record I have decided to adjudicate the issue on the merits of the case. In the instant case the AO has rightly assessed an income of Rs.39,65,984/-. Since the appellant failed to substantiate appellant's claim and addition made by the Assessing Officer of Rs.36,79,554/- is hereby confirmed.”
6. Dissatisfied, the assessee is in appeal before the Tribunal and all the grounds of appeal relate thereto.
The Ld. AR submitted that non-appearance before the Ld. CIT(A) was for the reason that the notice(s) were issued on incorrect e-mail id. The notice(s) ought to have been issued at the address for communication mentioned by the assessee in Appeal Memo Form No. 35.
The Ld. DR, however, relied on the order of Ld. CIT(A) and submitted that the assessee was given sufficient opportunity to present his case before the Ld. CIT(A), but he failed to do so which shows that the assessee was not serious about pursuing his appeal. Hence, the Ld. CIT(A) was fully justified in dismissing the appeal of the assessee.
We have heard the Ld. Representatives of the parties and perused the records. We observe that there was non-compliance of notice(s) of hearing and the Ld. CIT(A)/NFAC dismissed the appeal of the assessee for non-prosecution and endorsing the findings of the Ld. AO. The Ld. CIT(A) in para 6 of the appellate order has categorically stated that based on the material available on record before him, he has decided the issue on merits of the case, however, we observe that the order of Ld. CIT(A) is completely silent on merits of the case. The appellate order reveals that the Ld. CIT(A) has applied the decision of Hon’ble Supreme Court in the case of B.N. Bhattachargee, 118 ITR 461 (SC). No doubt the Ld. CIT(A) may decide the appeal ex-parte where the assessee does not prosecute his appeal inspite of several opportunities. Nonetheless, he has to adhere to the legislative mandate enshrined in sub-section (6) of section 250 of the Act which requires him to state the points for determination, the decision thereof and the reasons for the decision. We observe that the Ld. CIT(A) has passed the impugned order in concurrence of the order of Ld. AO without himself going into the merits of the case. Thus, in our view his order is in violation of the provisions of section 250(6) of the Act.
On the facts and in the circumstances of the case, we deem it fit in the interest of justice and fair play to set aside the order of Ld. CIT(A) and restore the matter back to his file for adjudication afresh and pass speaking order on merit after allowing reasonable opportunity of being heard to the assessee who shall provide the requisite support in terms of submitting the relevant documents/evidence as may be required/called upon. We order accordingly.
In the result, the appeal of assessee is allowed for statistical purpose.
Order pronounced in the open court on 01st October, 2024.