BAYJABAISHAMRAO NIKAM,NASHIK vs. ACIT, CIRCLE 2,, NASHIK

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “SMC”, PUNE BEFORE SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER AND SHRI VINAY BHAMORE, JUDICIAL MEMBER आयकर अपील सं. / ITA No.742/PUN/2024 िनधा�रण वष� / Assessment Year : 2011-12 Bayjabai Shamrao Nikam, Vs. ACIT, Circle-2, Nashik. Ghar No.844, Near Ramsetu Bridge, Gangaghat, Murlidhar Koat, Nikam Wada, Panchwati, Nashik- 422003 PAN : AMYPN0716G Appellant Respondent Assessee by : Shri Sanket Joshi Revenue by : Smt. Umashankar Prasad Date of hearing : 23.07.2024 Date of pronouncement : 29.07.2024 आदेश / ORDER PER VINAY BHAMORE, JM: This appeal filed by the assessee is directed against the order dated 25.07.2023 passed by Ld CIT(A)/NFAC for the assessment year 2011-12. 2. The appellant raised the following grounds of appeal :- “1] The learned CIT(A) erred in confirming the addition of Rs.22,00,000 made by the A.O. in the assessment order passed u/s 144 r.w.s. 147 by treating entire cash deposits made during the year under consideration as unexplained income without appreciating that the said addition is not justified on facts and in law.

2 ITA No.742/PUN/2024 2] The appellant submits that the notice u/s 148 was issued on the basis of incorrect facts and this fact has also been categorically admitted by the A.O. in the asst, order and thus, the notice issued u/s 148 merely on the basis of information received by A.O. without any independent verification of the said information on the part of A.O., may be declared as null and void in law. 3] The appellant submits that the asst, order u/s 144 r.w.s. 147 was passed without taking any cognizance of the ITR u/s 148 filed vide acknowledgment no. 391208040201218 and submissions filed before A.O. electronically on 20.12.2018 which are duly reflected on the income tax portal even as on date and therefore, the asst, order passed u/s 144 r.w.s. 147 on 24.12.2018 may be declared as bad in law. 4] The appellant submits that the asst. order u/s 147 r.w.s. 144 passed without issuing any notice u/s 143(2) in response to the ITR electronically filed vide acknowledgment no. 391208040201218, is not sustainable in law and hence, the said asst. order may be declared as bad in law. 5] Without prejudice to above grounds, it is submitted that the appellant is an illiterate senior citizen and all the notices issued by CIT(A) were served on the email id of the erstwhile tax consultant and not served physically by post on the appellant and therefore, the said notices could not be complied with by the appellant and hence, it is prayed that the matter may please be set aside to the file of CIT(A)/ A.O. for fresh adjudication on merits after affording reasonable opportunity of being heard to the assessee. 6] The appellant craves leave to add/ alter/ amend any of the grounds of appeal” 3. The facts of the case, in brief, are that the assessee is an individual. No return of income for the assessment year 2011-12 was filed under the provisions of section 139 of the IT Act. On the basis of information available with the Department, that the assessee made cash deposits in his savings bank account maintained with the Bank of India during the year under consideration, notice u/s 148 was issued on 31.03.2018 and duly served upon the assessee.

3 ITA No.742/PUN/2024 Thereafter, notice u/s 142(1) was issued on 11.06.2018. However, the assessee failed to comply with the above said notices. Further, a notice u/s 133(6) of the IT Act was issued to the concerned bank to furnish the copy of extract of account for period 01.04.2010 to 31.03.2011. In response to the said notice issued u/s 133(6), the bank furnished the relevant details. On perusal of the said details, it was observed by the Assessing Officer that the assessee had deposited Rs.22,00,000/- in cash. But, the assessee failed to produce the source of the said deposit of Rs.22,00,000/-. Therefore, the Assessing Officer completed the assessment vide order dated 24.12.2018 u/s 144 of the IT Act by making an addition of Rs.22,00,000/- as unexplained money. The Assessing Officer also initiated penalty proceedings u/s 271(1)(c) of the IT Act. 4. Being aggrieved with the above assessment order, an appeal was filed before the ld. CIT(A)/NFAC, who vide impugned order dated 25.07.2023 dismissed the appeal of the assessee for want of prosecution. 5. Being aggrieved with the decision of the ld. CIT(A)/NFAC, the appellant is in appeal before this Tribunal. 6. We have heard ld. Counsels from both the sides and perused the material available on record. We find that ld. CIT(A)/NFAC

4 ITA No.742/PUN/2024 issued notices on the email available on the ITBA portal which belonged to the erstwhile consultant of the assessee, who neither informed to the assessee nor attended the hearing before LD CIT(A), consequently the unfortunate order was passed resulting in huge demand. We find that the assessee is a senior citizen widow lady running a small sweets shop and she is not aware with technology & therefore completely dependent on his erstwhile tax consultant. We further find that the return of income as well as written submission was filed online on 20-12-2018 by the assessee but the AO in his order mentioned that no return of income was filed by the assessee. Under the above circumstances, we are of the considered opinion that the orders passed by both the subordinate authorities are bad in law to the extent not considering the return of income filed by the assessee. Therefore, in the interest of justice, we deem it appropriate to provide one more opportunity of hearing to the assessee (being a senior citizen widow lady) before the AO, so that the assessee can substantiate her case before the AO. We therefore without going into merits of the case set-aside the orders passed by both the subordinate authorities & remand the matter back to the file of the Assessing Officer for passing assessment order a fresh after providing reasonable opportunity of hearing to

5 ITA No.742/PUN/2024 the assessee. Ld AO shall pass the order as per facts & law after providing reasonable opportunity of being heard to the assessee. The assessee is also hereby directed to respond to the notice issued by ld. AO and submit the requisite details on the appointed date without seeking any adjournment under any pretext, failing which ld. AO is at liberty to pass appropriate order as per law. We hold and direct accordingly. Thus, the grounds of appeal raised by the assessee are partly allowed. 7. In the result, the appeal filed by the assessee stands partly allowed for statistical purposes. Order pronounced in the open Court on 29th day of July, 2024. Sd/- Sd/- (G. D. PADMAHSHALI) (VINAY BHAMORE) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; �दनांक / Dated : 29th July, 2024. Sujeet आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The Pr. CIT concerned. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “SMC” ब�च, 4. पुणे / DR, ITAT, “SMC” Bench, Pune. गाड� फ़ाइल / Guard File. 5. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.