BHAVIN GUNVANTBHAI SAGAR,AHMEDABAD vs. DY.CIT.,CIRCLE-2(2)(1), AHMEDABAD

Assessment Year : 2017-18 Bhavin Gunvantbhai Sagar The Dy. Commissioner of Income- 501, Madhuram Apartment v. Tax, Nr. Sant Kabir School Circle-2(2)(1) Ahmedabad – 380013 Ahmedabad-380015 Gujarat Gujarat PAN: AMMPS 1447 D अपीलाथ� अपीलाथ�/ (Appellant) अपीलाथ� अपीलाथ� �� य �� यथ� �� य �� य थ� थ�/ (Respondent) थ� Assessee by : Shri Aseem L. Thakkar, CA Revenue by : Shri Atul Pandey, Sr.D.R. सुनवाई क� तारीख/Date of Hearing : 18/01/2024 घोषणा क� तारीख /Date of Pronouncement: 18/01/2024 आदेश/O R D E R आदेश आदेश आदेश Per Coram This appeal filed by the assessee is directed against the appellate order dated 21/06/2023 passed by Ld. Commissioner of Income-tax (Appeals), National Faceless Appeal Centre, Delhi [“CIT(A)” in short] under section 250 of the Income Tax Act, 1961 (hereinafter called “the Act”) for Assessment Year 2017-18 (DIN & Order No.ITBA/NFAC/S/250/2023- 24/1053833888(1)), the appellate proceedings have arisen before Ld.CIT(A) from assessment order dated 26/12/2019 passed by Ld. Assessing Officer (hereinafter called “the AO") u/s.143(3) of the 1961 Act (DIN & Order No. ITBA/AST/S/143(3)/2019-20/1023131866(1)).

Bhavin Gunvantbhai Sagar v. DCIT AY 2017-18 2

“1. The Ld. CIT(A), NFAC, Delhi has erred in passing an ex Parte order dismissing the appeal of the assessee without giving reasonable opportunity of being heard to the appellant hence the same being against the principles of natural justice and law requires to be quashed.

2. The Ld. CIT(A), NFAC, Delhi has erred in passing an Ex Parte order and confirming the addition made by the Assessing Officer without considering the written submissions dtd. 12.06.2023 with annexures thereto filed on portal by the appellant on 12.06.2023.

4. The appellant craves leave to add, alter, amend or modify all or any of the grounds of appeal before or at the time of hearing.”

3. The brief facts of the case are that the assessment has been framed by the Assessing Officer vide assessment order dated 26/12/2019 passed u/s 143(3) of the Income-tax Act, 1961, wherein an addition of Rs.36,60,000/- was made by the AO on account of ‘unexplained cash credits ‘ u/s. 68 of the Income Tax Act, 1961. There was a cash deposits in the bank account by the assesse during demonetization period, and the explanation submitted by the assesse was not accepted by the AO, which led to aforesaid additions to the income of the assessee. The assessee filed its first appeal before Ld.CIT(A). During appellate proceedings , Ld.CIT(A) issued two notices dated 13/1/2021 and 11/05/2023 to the assessee. The assessee requested for adjournment in response to notice issued by ld. CIT(A) on 11/5/2023 . The Ld.CIT(A) issued notice on 06/06/2023 giving final opportunity to the assessee, asking assessee to file submissions by 12/06/2023. The assesse did

Bhavin Gunvantbhai Sagar v. DCIT AY 2017-18 3 not filed any submissions. The Ld.CIT(A) dismissed the appeal of the assesse vide orders dated 21.06.2023 , by holding as under:-

“4.2 The Hon'ble ITAT in - 1027 / Chandi/2005 for the A.Y. 2002-03 in the case of M/s Chhabra Land and Housing Ltd. after following the decision of Hon'ble Supreme Court in the case of B.N. Bhattachargee, 118 ITR 461 (SC) held that the appeal does not mean merely filing of the appeal but effectively pursuing it. Keeping in view of the aforesaid factual position, the appeal filed by the appellant is, therefore, decided on merits.

3.1. The assessee has now filed second appeal before the Tribunal, and at the outset, the ld.counsel for the assessee submitted that the assessee has duly filed reply before Ld.CIT(A) on 12/06/2023 vide acknowledgement No. 227325211120623 in e-proceedings response, whereby the assessee has submitted complete replies , which were not considered by ld. CIT(A), and the appeal of the assesse was dismissed by ld. CIT(A) for non prosecution. The said e-proceedings response acknowledgment filed by the assesse is placed on record in file. The ld. counsel for the assessee submitted that the ld.CIT(A) has passed a cryptic, non-speaking and non reasoned order. It was submitted that ld. CIT(A) has simply upheld the addition of Rs.36,60,000/- by holding that the AO has rightly made the addition. Thus, there is no independent application of mind by the Ld.CIT(A), the order is Bhavin Gunvantbhai Sagar v. DCIT AY 2017-18 4 not a reasoned and speaking order , and the provisions of section 250(6) of the Act is not complied with by the Ld.CIT(A).

5. After considering the material available on record as well as the submissions made by both the parties, we are of the considered view that, in the instant case, the Ld. CIT(A) has not adjudicated the issue on merits and has simply dismissed the appeal of the assessee by passing a non- speaking, non-reasoned and cryptic order, thus, there is no independent application of mind by the Ld.CIT(A). The ld. CIT(A) has just held that the AO has rightly made the additions of Rs. 36,60,000/- under the head ‘unexplained cash credit u/s 68 of the 1961 Act. There are no facts discussed by ld. CIT(A), there is no independent reasoning and application of mind by ld. CIT(A), and a cryptic non speaking order is passed. Thus, the order passed by the Ld.CIT(A) is not in compliance with the provisions of section 250(6) of the Act. Further, the Ld.CIT(A) has observed that the assessee has not filed any submission with respect to notice issued on 06/06/2023 for which compliance was called for by 12/06/2023 and, in fact, rather the assessee has duly filed the reply/submissions through e-proceedings on 12/06/2023; i.e. within the time provided by the Ld.CIT(A) and, hence, the appellate order of the Ld.CIT(A) also suffers from this infirmity. The evidence to that effect is on record , which is placed in file. Thus, in the interest of justice and fair play, we are inclined to restore the matter back to the file of Ld.CIT(A) with the direction to pass a reasoned and speaking order on merits in accordance with law, after providing reasonable opportunity of being heard. The assessee is also directed to co-operate with Bhavin Gunvantbhai Sagar v. DCIT AY 2017-18 5 the Ld.CIT(A), and comply with the directions of the Ld.CIT(A). Thus, in nutshell, the appeal of the assessee is restored back to the file of ld.CIT(A) for fresh adjudication on merits in accordance with law, after giving opportunity of being heard. We clarify that we have not commented on the merits of the issue in this appeal and all the contentions are kept open. In nutshell, the appeal of the assesse is allowed for statistical purposes. We order accordingly.

Order pronounced in the Court on 18th January, 2024 at Ahmedabad. in the presence of both the parties, and reduced to writing and signed on 22 January, 2024.