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Income Tax Appellate Tribunal, JAIPUR BENCHES, ‘’SMC” JAIPUR
Before: Hon’ble SHRI SANDEEP GOSAINvk;dj vihy la-@ITA No. 411/JP/2022
ORDER PER: SANDEEP GOSAIN, JM The assessee has filed an appeal against the order of the ld. CIT(A) dated 31-10-2022, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2012-13 wherein the assessee has raised the following grounds of appeal.
‘’1. That the authorities below made the addition doubting the authenticity of the IKRARNAMA, without conducting any enquiry as to its genuineness or otherwise.
2 SMT. RAJU DEVI SAINI, VS ITO, WARD 4(2), JAIPUR 2. That the ld. CIT(A) erred in law as well as facts in confirming the addition of Rs.23,41,290/- u/s 69C which is contrary to law, facts and circumstances of the case, in as much as the AO has not made any addition for which the reopening was made but made addition on some other ground.
That the ld. CIT(A) erred in confirming the addition made u/s 69C ignoring the fact that the case was reopened for taxing the capital gain arising on sale of immovable property, the sale of which had not been disclosed by the assessee in her return.
That the ld. CIT(A) has erred in confirming the addition made on a ground other than the one stated in the reason for reopening the case, particularly when no addition has been made on the ground of reopening which had thus ceased to exist. Hence, the addition has no legs to stand and deserves to be held as ab initio null & void, in view of the decision of Hon’ble Delhi High Court in the case of Ranbaxy Laboratories Ltd. vs CIT(2011) 336 ITR 136 (Del.) 5. That the authorities below have erred in making the addition / confirming the addition, ignoring the fact that they did not have jurisdiction to proceed with the reassessment, once it was found that the ground mentioned in the notice u/s 148 were incorrect and non- existent as held by Rajasthan High Court in CIT vs Shri Ram Singh (2008) 306 ITR 343 (Raj) and Punjab & Haryana High Court in CIT vs Atlas Cycle Indutries (1989) 180 ITR 319.
That the authorities below failed to appreciate that the assessee had filed the reply and submitted the IKRARNAMA to prove his point which was brushed aside based upon imagination and suspicion, without proving the same to be bogus, ingenuine or fabricated. Simultaneously, vide letter dated 20-02-2023, the advocate of the assessee Shri Vikas Yadav has requested to consider the following additional grounds.
‘’1. That the assessment order passed by the AO and confirmed by the ld. CIT(A) is perverse in law on account of lack of jurisdiction of AO in absence of service of notice u/s 148 dated 26-03- 2019 on the appellant.
3 SMT. RAJU DEVI SAINI, VS ITO, WARD 4(2), JAIPUR 2. That the ld. CIT(A) erred in confirming the addition made u/s 69C ignoring the fact that the very reason on the basis of which the Assessing Officer formed the opinion that the income of the assesse has escaped assessment, was factually incorrect and therefore, the reopening of the case was invalid.
3. That the ld. CIT(A) erred in confirming the addition made u/s 69C ignoring the fact that the assessment made by the Assessing Officer in pursuance of notice issued u/s 148 of the Income Tax Act was null and void, in as much as the notice was issued citing one reason and the order of the assessment was made on another reason Further, the Smt. Raju Devi Saini, assessee has filed an affidavit mainly praying that because of dispute between the then ld. AR and the assessee, the then ld. AR did not pursue the matter before the ld. CIT(A) who subsequently dismissed the appeal of the assessee ex-parte.
2.1 During the course of hearing, the ld. AR of the assessee put main thrust on ex-parte order passed by the ld.CIT(A) and thus submitted that the assessee remained deprived off to advance her arguments/ submission at the time of hearing before the ld. CIT(A) and the assessee should be given one more opportunity to advance her submission / arguments before the ld.CIT(A) to get justice.
2.2 On the other hand, the ld. DR supported the order of the ld. CIT(A) and also filed a report sent by Shri Satish Chadn Gupta, ITO, Ward 4(2) vide letter dated 13-034-2023 to the Addl. CIT, DR-III, SMC, ITAT, Jaipur mentioning therein that 2.3 The Bench has heard both the parties and perused the materials available on record. The Bench noted that the ld. CIT(A) has dismissed the appeal of the assessee ex-parte by observing as under:-
‘’8.DECISION: - I have gone through the facts emanating from grounds of appeal and statement of facts and other facts of the case available on the record. From the documents available on record, it is found that the appellant was given more opportunities but appellant failed to avail the opportunity of being hard on the fixed dated of hearings. During the appellate proceedings, the appellant has not complied with even for once nor filed any written submission. In absence of the written submission and evidence, it remained to be unexplained as to how the AO's order is erroneous. If the appellant claims that the assessment order is objectionable he should file the supporting evidences. However, the appellant failed to avail the same by non-complying. Therefore, it is assumed that the appellant is not interested in pursuing his own appeal. Moreover, the appellant failed to bring on records any facts or documents which can explain how the order of the AO is erroneous. In the case of Anil Goel Vs. CIT, [2008] 306 ITR 212 (Punjab & Haryana), the Hon'ble High Court held as under: ‘’4. It is thus obvious on the plain language of section 250 of the Act that date and place of hearing was duly fixed. The assessee was also given notice along with notice to the Assessing Officer. The assessee had ample opportunity to make his submissions by appearing in person or through authorised representative. Despite fixing the case for seventeen hearings, no one had put in appearance nor any justifiable reason for adjournment was given.
5 SMT. RAJU DEVI SAINI, VS ITO, WARD 4(2), JAIPUR 5. The Tribunal also found that non-recording of reasons in support of order passed by CIT(A) would not amount to committing any illegality because the CIT(A) has adopted the reasoning advanced by the Assessing Officer and has upheld his order. The judgment of this Court, in the case of Popular Engineering Co. v. ITAT [2001] 248 ITR 577, has been rightly relied upon wherein it has been observed that elaborate reasons need not be recorded by the CIT(A) as has been done by the Assessing Officer. The reasons are required to be clear and explicit indicating that the authority has considered the issue in controversy. If the appellate/revisional authority has to affirm such an order it is not required to give separate reasons which may be required in case the order is to be reversed by the appellate/revisional authority." In this circumstances narrated herein above, I am left with no option except to the confirm order of assessing officer passed u/s 143(3) r.w.s 147 of the I.T. Act 1961. Therefore, the Assessing Officer's order is confirmed and the grounds of appeal are dismissed.
9. In the result, the appeal of the appellant is dismissed ‘’ In view of the above deliberation and with a view to providing of equity and justice, the Bench feels that one more chance should be given to the assessee to contest/ argue her case before the ld. CIT(A) who will provide adequate opportunity of being heard to the assessee by taking into consideration the submissions made hereinabove through grounds of appeal and additional grounds of appeal. Thus the appeal of the assessee of the assessee is restored back to the file of the ld. CIT(A) to decide it afresh after providing adequate opportunity of being heard to the assessee. The Assessee is also directed to not to seek 6 ITA NO. 411/JP/2022 SMT. RAJU DEVI SAINI, VS ITO, WARD 4(2), JAIPUR adjournment on frivolous grounds and submit the necessary documents before the ld. CIT(A) for early disposal of the case. Thus the appeals of the assessee are allowed for statistical purposes.