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Assessee represented by Shri Rajesh Shah, A.R. Department represented by Shri Ritesh Mishra, CIT-DR Date of hearing 19/12/2023 Date of pronouncement 19/12/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) [in short, the ld. CIT(A)] dated 29/11/2021 for the Assessment Year (AY) 2013-14. The assessee has raised following grounds of appeal: “1. On the facts and circumstances of the case as well as law on the subject, the Assessing Officer has erred in reopening the assessment u/s 147 after issuing notice u/s 148 of the Act and passing the reassessment order.
2. On the facts and circumstances of the case as well as law on the subject, the ld. CIT(A) has erred in passing the order without giving the copy of remand report to the assessee.
3. On the facts and circumstances of the case as well as law on the subject, the ld. CIT(A) has erred in confirming the action of assessing officer in making addition u/s 69 of Rs. 6,12,92,442/- being credit entries appearing in the bank account of the assessee.
Shri Pradeepsinh Bachubhai Gohil Vs ITO 4. It is therefore prayed that the above addition may please be deleted.
Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.”
Rival submission of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee submits that there is delay of 19 days in filing appeal before this Tribunal. The ld. AR of the assessee submits that the impugned order was passed by the ld. CIT(A) on 29/11/2021 and the present appeal was filed on 16/02/2022. The ld. AR of the assessee submits that the entire period of delay is covered by the decision of Hon'ble Apex Court in Suo Moto Writ Petition No. 3/2020 dated 10/01/2022 wherein delay in taking legal action was condoned from 15/03/2020 to 28/02/2022, thus the appeal of assessee is technically not filed belatedly.
On merit, the ld. AR of the assessee submits that the assessee has raised legal ground against reopening under Section 147 of the Income Tax Act, 1961 (in short, the Act) and issuance of notice under Section 148 of the Act, such issue was not raised before the first appellate authority. The ld. AR of the assessee further submits that the Assessing Officer passed the assessment order under Section 144 of the Act by making addition of Rs. 6.12 crores under Section 69 of the Act on account of credit entry appeared in the bank account of assessee. The ld. CIT(A) confirmed the action of Assessing Officer. Before the ld. CIT(A), the assessee filed detailed written submission. On the written submission of assessee, the ld. CIT(A) called remand report from Assessing Officer, however, copy of 2 Shri Pradeepsinh Bachubhai Gohil Vs ITO remand report was not furnished nor any comment of assessee was sought on such remand report. The ld. CIT(A) violated the principles of natural justice while confirming the addition. The ld. AR of the assessee submits that the matter may be restored to the file of ld. CIT(A) for adjudicating the issue afresh with direction to supply the copy of remand report of Assessing officer to the assessee and the assessee may be allow liberty to assessee to raise legal ground against the validity of reopening under Section 147 and issuance of notice under Section 148 of the Act.
On the other hand, the learned Commissioner of Income Tax- Departmental Representative (ld. CIT-DR) for the revenue submits that he fully supports the order of lower authorities. On the specific plea of ld AR for the assessee about restoring the matter back to the file of ld CIT(A), the ld CIT-DR for the revenue submits that so far as allowing liberty for raising the additional ground of appeal
and supply of remand report is concerned, the assessee may raise legal ground if so available under law and on supply of remand report, the ld. CIT-DR for the revenue submits that appropriate direction may be given to the ld. CIT(A) for doing the needful.
5. We have considered the submissions of both the parties and perused the record carefully. So far as the delay is concerned, we find that the entire period of delay is covered by the decision of Hon'ble Apex Court in MA No. 21/22 in Suo Moto Writ Petition No. 3 of 2020, wherein delay in taking recourse of law including filing appeals before various forms, was 3 Shri Pradeepsinh Bachubhai Gohil Vs ITO condoned up to 28/02/2022 and further 90 days’ grace period was allowed to take recourse of law. Hence, the delay of 19 days in filing of appeal is condoned. Now adverting to the merits of the case.
6. We find that the assessment was completed under section 144 in making the addition of Rs., 6.12 Crore for the want of explanation. We find that before ld CIT(A), the assessee filed detailed written submissions. The submissions of the assessee are recorded in para 5.0 of order of ld CIT(A). In the submissions the assessee stated that he is in the business of transportation in the name of Hevti Road Lines. The assessee is utilising his own truck and also hiring truck on commissions basis. Besides the other contention the assessee pleaded that the assessing officer ignored the expenses and depreciation on the vehicles. We further find that the ld CIT(A) remanded the submission of assessee to the assessing officer for furnishing his remand report as recorded in para-6 of impugned order. Remand report of assessing officer was received by ld CIT(A). However, the ld CIT(A) nowhere recorded that the said remand report was shared with the assessee or his rejoinder was called. The ld. CIT(A) upheld the action of Assessing Officer in the impugned order by taking view that no bills were produced by the assessee. In our view, the substantial right of assessee is involved in the present appeal, the ld CIT(A) has violated the principal of natural justice for not allowing the assessee to make his comment of the remand report, therefore, we deem it appropriate to restore the issue back to the file of ld. CIT(A) to decide 4