MR. KANTILAL LAXMICHAND JAIN,AHMEDABAD vs. THE ITO, WARD-1(2)(3), AHMEDABAD

There was a delay of 56 days in filing of these appeals. The assesse has filed an affidavit explaining that he is a senior citizen having severe medical conditions with heart ailments for long time. Further, he was not well conversant with the technical requirements for filing of appeals which led to delay in & 800/Ahd/2024 [Mr. Kantilal Laxmichand Jain vs. ITO] A.Ys. 2013-14 & 2014-15 - 2 – consultation with the professional Chartered Accountant. Considering the reason as explained, the delay in filing the appeals is condoned.

The issue involved in both the appeals is identical and the two appeals were heard together. Therefore, these appeals are being disposed of vide this common order. We will take A.Y. 2014-15 as the lead case.

The brief facts of the case are that no return of income was filed by the assesse for A.Y. 2014-15. Subsequently, the AO found that the assessee had done certain transactions amounting to Rs.34,18,810/- through NSE during the F.Y.2013-14 relevant to A.Y. 2014-15. Therefore, proceeding under Section 147 of the income Tax Act, 1961 (in short ‘the Act’) was initiated after recording the reasons. In the course of reopened proceedings, there was no compliance made by the assessee in spite of numerous opportunities provided by the AO. Therefore, the AO completed assessment ex-parte u/s.144 r.w.s. 147 of the Act on 19.03.2022 and the entire transaction amount of Rs.34,18,810/- done through NSE was considered as income of the assesse.

Aggrieved with the order of the AO, the assessee had filed appeal before the First Appellate Authority, which has been decided by the Ld. CIT(A) vide the impugned order and the appeal of the assessee was dismissed.

& 800/Ahd/2024 [Mr. Kantilal Laxmichand Jain vs. ITO] A.Ys. 2013-14 & 2014-15 - 3 –

Now, the assessee is in second appeal before us and has taken following grounds in this appeal:

1. Ground No. 1-Reopening of assessment under section 147 of the Act is bad in law 1.1 On the facts and circumstances of the case, the learned AO has erred in law and facts in assuming jurisdiction under section 147 of the Act as there was no reason to believe that the income of the Appellant had escaped assessment. 1.2 On the facts and circumstances of the case, the learned AO has erred in law and facts in assuming jurisdiction under section 147 of the Act as the learned AO had not applied his mind before issuing notice under section 148 of the Act. 1.3 On the facts and circumstances of the case, the learned AO has erred in law and facts in initiating reassessment proceedings under section 147 of the Act beyond the prescribed time limit of 4 years from the end of the relevant assessment year, i.e AY 2014-15 and hence, reassessment proceedings are bad in law.

Shri Malay Kalavadia, Ld. AR appearing for the assessee submitted that the assesse being senior citizen and suffering from various ailments, no compliance could be made before the AO in the course of reopened assessment proceeding. The Ld. AR submitted that the Ld. CIT(A) had dismissed the appeal of the assesse on technical ground without examining the merits of the case. He explained that the Ld. CIT(A) had dismissed the appeal for the reason that no advance tax payment was made by the assesse, in spite of the fact that it was categorically mentioned in Form 35 that the condition prescribed u/s.249(4)(b) of the Act for payment of advance tax was not applicable in the case of the assessee. He, therefore, requested that the matter may be set aside to the file of the Ld. CIT(A) with a direction to decide the appeal on its merit.

Per contra, Shri C Dharani Nath, Sr. DR submitted that the Ld. CIT(A) had made specific enquiry regarding fulfillment of conditions as stipulated in Section 249(4)(b) of the Act vide letter dated 20.12.2023, which was not complied by the assessee and, therefore, he had rightly dismissed the appeal.

We have carefully considered the rival submissions. It is found that in Column No.-9 of Form 35, the assesse had categorically mentioned that the condition for payment of advance tax as stipulated u/s.249(4)(b) of the Act was “Not applicable”. The Ld. CIT(A) has given a finding that the appellant had offered comment as ‘Yes’ at Sl. No.9 of Form No.35. However, from the copy of Form No.35 as filed along with this appeal, we do not find any such comment of ‘Yes’ at Sl. No.9; rather comment ‘Not applicable’ is found appearing. Under the circumstances, the action of the Ld. CIT(A) to dismiss the appeal on the technical ground cannot be held as correct. As per proviso to Section 249(4)(b) of the Act, the Ld. CIT(A) has power to exempt the assesse from operation of the provision of that clause. Therefore, the Ld. CIT(A) should have decided the appeal on its merits, particularly when the assessee had categorically mentioned in Form No.35 that Section 249(4)(b) of the Act was applicable in his case. We, therefore, set aside the matter to the file of the Ld. CIT(A) with a direction to re-adjudicate the appeal of the assesse on its merits. The Ld. CIT(A) should allow proper opportunity of being heard to the assessee. The assessee is also directed to appear before the Ld. CIT(A) and not to seek adjournment without a valid reason. In case of non-compliance & 800/Ahd/2024 [Mr. Kantilal Laxmichand Jain vs. ITO] A.Ys. 2013-14 & 2014-15 - 6 – on the part of the assessee, the Ld. CIT(A) will be free to pass the order as deemed fit.

Since, Ground No.2 taken by the assesse is allowed by setting aside the matter to the Ld. CIT(A), we do not deem it necessary to adjudicate the other grounds taken by the assessee.

In the result, the appeal of the assessee is allowed in part for statistical purposes.

The facts pertaining to this appeal are identical to . In this order also, the assessment was completed u/s.144 r.w.s. 147 of the Act on 19.03.2022 and the transaction of Rs.55,26,460/- done by the assessee through NSE was assessed as income. The appeal filed by the assessee was disposed of vide order dated 29.12.2023, the scanned copy of which is as under:

It is found that not a single word is appearing in the order of Ld. CIT(A) and the ultimate outcome of this appeal is also not evident. It appears that there has been some mistake of copy-paste in this appeal, as a result of which the order of the Ld. CIT(A) has remained blank. Since, the facts in this case are identical to A.Y. 2014-15 which has been set aside to the file of the ld. & 800/Ahd/2024 [Mr. Kantilal Laxmichand Jain vs. ITO] A.Ys. 2013-14 & 2014-15 - 8 – CIT(A), the appeal of this year also is set aside to the file of the Ld. CIT(A) to examine the matter on its merits and thereafter to pass a reasoned order.

In the result, the appeal of the assessee is allowed for statistical purposes.