KUMUD LAHU PHADKE, RAIGAD vs. ITO WARD 2 PANVEL, PANVEL

The appeal filed by the assessee is directed against the order dated 05.02.2024 of the Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi [“CIT(A)”] pertaining to Assessment Year (“AY”) 2013-14.

The assessee has raised the following grounds of appeal :- “On facts and in law, 1) The learned CIT(A)-NFAC has erred in confirming the order passed by the learned AO-ITO Ward-2, Panvel without noting that: a) In the 1st appeal proceedings, the learned AO has relied on only information available through RMS on ITBA module and without taking any independent and additional efforts required to be taken to verify the correctness of information before making any addition or deciding the relatable issue and b) The learned AO-ITO Ward-2, Panvel also failed to note the proper services of notice during the assessment proceedings including SCN and notice u/s 148 and c) In view of the (a) && (b) above, the additions made are merely to complete the assessment proceedings being initiated by issue of notice u/s 148 and d) The learned AO has not cared to obtain information from the bank and and give credit for the withdrawals in cash for possible set off. 2) The learned CIT(A) has failed to note that:

It is a case of assessment framed u/s 144 r.w.s. 147 of the Income Tax Act, 1961 (the “Act”). From the NMS (Non-filers Monitoring System) data available in computer system through ITBA module it was found that the assessee during the relevant AY 2013-14 had made the following transactions : Deposited Cash of Rs.10,00,000/- or more Rs.28,60,000/- in a Saving Bank Account Deposit in Cash aggregating Rs.2,00,000/- Rs.12,70,000/- or more, with a banking company Time Deposit exceeding Rs.2,00,000/- with Rs.10,00,000/- a Banking Company Total Rs.51,30,000/- 3.1 Since the assessee had not filed the return of income for the AY 2013-14 noticed u/s 148 of the Act was issued on 04.03.2020. For the lack of compliance in response thereto as also to the show cause notice requesting the assessee to submit the necessary details/explanations regarding the above transactions, the Ld. Assessing Officer (“AO”) added Rs.51,30,000/- to the income of the assessee u/s 69A of the Act for the reason that the source of cash deposits/time deposits in the bank account by the assessee remained unexplained and completed the assessment ex- parte on 30.09.2021 u/s 144 r.w.s. 147 of the Act.

The assessee challenged the ex-parte order of the Ld. AO before the Ld. CIT(A). The Ld. CIT(A) too decided the appeal of the assessee ex-parte for non-compliance of notice(s) of hearing dismissing the appeal of the assessee. The Ld. CIT(A) observed that the assessee had not replied to any of the notice(s) issued via e-mail although duly served on the assessee and neither furnish any reply nor sought any adjournment. He therefore proceeded to decide the appeal ex-parte based on the information available on record and upheld the order of Ld. AO by observing as under : “5.3 a) Not only during the assessment proceedings but also during the appellate proceedings the appellant has remained non-compliant. b) At the time of filing of this appeal, the appellant has only filed a copy of medical certificate of some Mr. Gajanan ………Chavan. c) No other documents in support of claim of the appellant regarding receipt of gift from father, redeposit of withdrawn cash etc. and out of earlier year matured during the impugned year have been provided by the appellant. d) In view of the above, it is clear that the appellant has nothing to say or produce any documentary evidences in support of grounds raised. In these facts and circumstances, I am constrained to be in agreement with the finding of the Assessing Officer and hold that the appellant is unable to substantiate its claims and is not able to controvert the assessment order. The addition made by the Assessing Officer is therefore confirmed.”

The Ld. AR submitted that the notice(s) issued by the Ld. AO as well as Ld. CIT(A) were not issued on the proper e-mail of the assessee. Both the Ld. AO and the Ld. CIT(A) failed to note and verify proper service of notice(s) before passing ex-parte order. He, therefore, urged that the matter may be sent back to the file of Ld. CIT(A) and an opportunity be granted to present its case before him with all the requisite details/explanation in support of its claim for adjudication afresh on merits.

The Ld. DR had no objection.

We have heard the Ld. Representatives of the parties and perused the material on record. The Ld. CIT(A) has upheld the order of the Ld. AO for the reason that the assessee remained non-compliant both during the assessment proceedings as well as appellate proceedings and failed to produce any documentary evidences in support of grounds raised before him to substantiate its claim and to controvert the assessment order. It is the submission of the Ld. AR that given an opportunity the assessee is in a position to file all the requisite details/explanation as may be required/called for to substantiate its case. Considering the totality of the facts and on the facts and in the circumstances of the case and in the interest of justice and fair play, we deem it proper to restore the matter back to the file of Ld. CIT(A) to decide the appeal of the assessee afresh on merits after allowing reasonable opportunity of being heard to the parties. The assessee shall co-operate fully in appellate proceedings. We order accordingly.

In the result, the appeal of assessee is treated as allowed for statistical purpose.