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Income Tax Appellate Tribunal, AHMEDABAD “B” BENCH
Before: Dr. BRR Kumar & Ms. Suchitra Kamble
आदेश/ORDER PER : DR. BRR KUMAR, VICE PRESIDENT:-
These two appeals are filed by the assessee against the order of the ld. Commissioner of Income Tax, CIT(A), National Faceless Appeal Centre, Delhi, in proceeding u/s. 250 vide order dated 07/09/2023 passed for the assessment years 2014-15 & 2015-16.
& 967/Ahd/2024 A.Y. 2014-15 & 2015-16 Page No. 2 Jainish Binitkumar Shah vs. ITO
The grounds of appeals taken by the assessee are as under:-
A.Y. 2014-15 “1. This appeal by the appellant is against the ex parte order dated 7-9-2023 of CIT(A) for the assessment year 2014-15. There is a delay of 234 days in filing the present appeal. The appellant is filing an application for condonation of delay which is supported by the affidavit of the assessee.
2. The appellant has filed the statement of facts and grounds of appeal in detail with supporting evidences with page no. 35 before the Hon. CIT(A) with form No. 35 at the appeal filing stage. The learned CIT (A) may refer the submission and grounds of appeal and may verify from the records submitted online before learned AO. But the learned CIT(A) has failed to do so. Thereafter, the CIT(A) has issued the notices on 15-7-2023, 1- 8-2023 and 22-8-2023. But the said notices were sent in the previous Tax Consultant in his email address and mobile No. but the said notices were neither received by the appellant nor previous tax consultant. On 16-4-2024, the previous tax consultant had received a message in his mobile that "income-tax department has issued a notice for A.Y.2014-15 & 2015-16 u/s. 271(1)(c) of the Act. Kindly submit online response." The Previous Consultant had asked for the password which was changed by the assessee and the new password was delivered by the appellant to the previous Tax Consultant Then the counsel visited the site of ITBA of assessee it came to the knowledge of the assessee that the order has already been passed by the learned CIT(A) vide order dated 7-9-2023 on ex-parte basis, and then got the knowledge of the passing the appellate order. Further the appellant did not receive the above hearing notices of CIT(A) till date physically in post at the address mentioned in the notice mentioned in form No. 35.
3. The Ld. Commissioner of Income Tax (appeals) passed the order in haste without providing reasonable and sufficient opportunity and without service of proper notice to the appellant and thus violated the principles of natural justice.
4. The Ld. Commissioner of Income tax (Appeals) has erred in law and on facts in confirming addition of Rs. 9,04,37,368/- being 8% of total turnover of Rs. 1,13,28,86,601/- made by the learned AO in his order passed u/s. 147 r.w. section 144B of the Act.
5. The learned CIT(A) has erred in not considering the details submitted before the learned AO though mentioned in the statement of facts and grounds of appeal with page number mentioned therein and attached with form no. 35 at the filing stage which is amounting to miscarriage of justice and the learned CIT(A) ought to have considered the submission filed by the appellant, ought to have use the power to examine all matters covered by the assessment order, to correct the assessment and to pass a detailed and reasoned order after verifying all the submissions filed by the appellant at the time of assessment.
5. The appellant craves liberty to add, alter, amend any of the grounds of appeal.”
& 967/Ahd/2024 A.Y. 2014-15 & 2015-16 Page No. 3 Jainish Binitkumar Shah vs. ITO A.Y. 2014-15 “1. This appeal by the appellant is against the ex parte order dated 15-9-2023 of CIT(A) for the assessment year 2015-16. There is a delay of 226 days in filing the present appeal. The appellant is filing an application for condensation of delay which is supported by the affidavit of the assessee.
2. The appellant has filed the statement of facts and grounds of appeal in detail with supporting evidences with page no.s before the Hon. C1T(A) with form No. 35 at the appeal filing stage. The learned C1T (A) may refer the submission and grounds of appeal and may verify from the records submitted online before learned AO. But te learned C1T(A) has failed to do so. Thereafter, the CIT(A) has issued the notices on 15-7-2023, 1-8-2023 and 30-8-2023. But the said notices were sent in the previous Tax Consultant in his email address and mobile No. but the said notices were neither received by the appellant nor previous tax consultant. On 16-4-2024, the previous tax consultant had received a message in his mobile that "income-tax department has issued a notice for A.Y.2014-15 & 2015-16 u/s. 271(1)(c) of the Act. Kindly submit online response." The Previous Consultant had asked for the password which was changed by the assessee and the new password was delivered by the appellant to the previous Tax Consultant Then the counsel visited the site of ITBA of assessee it came to the knowledge of the assessee that the order has already been passed by the learned C1T(A) vide order dated 15-9-2023 on ex-parte basis and then got the knowledge of the passing the appellate order. Further the appellant did not receive the above hearing notices of C1T(A) till date physically in post at the address mentioned in the notice mentioned in form No. 35.
3. The Ld. Commissioner of Income Tax (appeals) passed the order in haste without providing reasonable and sufficient opportunity and without service of proper notice to the appellant and thus violated the principles of natural justice.
4. The Ld. Commissioner of Income tax (Appeals) has erred in law and on facts in confirming addition of Rs. 8,67,60,644/- being 8% of total turnover of Rs. 1,08,45,08,050/- made by the learned AO in his order passed u/s. 147 r.w. section 144B of the Act.
5. The learned CIT(A) has erred in not considering the details submitted before the learned AO though mentioned in the statement of facts and grounds of appeal with page number mentioned therein and attached with form no.35 at the filing stage which is amounting to miscarriage of justice and the learned CIT(A) ought to have considered the submission filed by the appellant, ought to have use the power to examine all matters covered by the assessment order, to correct the assessment and to pass a detailed and reasoned order after verifying all the submissions filed by the appellant at the time of assessment.
6. The appellant craves liberty to add, alter, amend any of the grounds of appeal.”
Heard the arguments of both the parties and perused the records available before us. The assessee is in the business of & 967/Ahd/2024 A.Y. 2014-15 & 2015-16 Page No. 4 Jainish Binitkumar Shah vs. ITO trading of cattle feed and maize products. In these cases, order u/s. 143(3) has been passed by the Assessing Officer on 27- 03-2022 for the assessment year 2014-15 and 2015-16. Aggrieved assessee filed appeal before the ld. CIT(A) who has passed an order dismissing the appeal of the assessee. The Ld. CIT(A) held that no evidences whatsoever has been filed by the assessee to substantiate the grounds of appeal. Before us, the ld. counsel submitted that given an opportunity due compliance would be made before the ld. CIT(A). The ld. Sr. D.R. has fairly considered the proposal.
4. Keeping in view the facts of the matter, we hereby direct the assessee to submit all relevant details which he rely upon before the ld. CIT(A). The ld. CIT(A) shall issue a fresh notice of hearing and complete the proceedings de-novo.
In the result, both the appeals filed by the assessee are allowed for statistical purposes.