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Income Tax Appellate Tribunal, RAIPUR BENCH “SMC”, RAIPUR
Before: SHRI RAVISH SOOD
आदेश / ORDER
PER RAVISH SOOD, JM:
The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 15.06.2023, which in turn arises from the order passed by the AO under Sec. 143(3) of the Income-tax Act, 1961 (in short ‘the Act’) dated 12.12.2017 for assessment year 2015-16. The assessee has assailed the impugned order on the following grounds of appeal: “1. Ld. CIT(A) erred in not adjudicating the appeal on merits and passed the order without considering the reply/ submission filed by the appellant. The appellate order passed by Ld. CIT(A) is illegal inasmuch as the same is contrary to principles of natural justice.
2. Ld. CIT(A) erred in confirming addition of Rs.15,15,000/- made by AO on account of long term capital gain claimed exempt by the appellant. The addition made by the AO and confirmed by Ld. CIT(A) is arbitrary, illegal and not justified.
3. Without prejudice above grounds, Ld. CIT(A) erred in confirming the action of the A.O of adding entire sale consideration of Rs.15,15,000/-.
4. The appellant reserves the right to add, amend or alter any of the ground/s of appeal.”
Succinctly stated, the assessee had filed his return of income for A.Y.2015-16 on 07.10.2015 declaring an income of Rs.5,49,750/-. Subsequently, the case of the assessee was selected for scrutiny assessment u/s.143(2) of the Act.
3 Tikamchand Rathi Vs. ITO-3(1), Raipur
Assessment was, thereafter, framed by the A.O vide his order passed u/s.143(3) of the Act, dated 12.12.2017, wherein, after declining the long term capital gain (LTCG) of Rs.15,15,000/- claimed by the assessee as exempt u/s.10(38) of the Act the same was recharacterized as the assessee’s undisclosed funds that were routed through the aforesaid bogus transaction, the A.O determined income of the assessee at Rs.20,64,750/-.
Aggrieved the assessee carried the matter in appeal before the CIT(Appeals) but without any success. Ostensibly, the CIT(Appeals) taking cognizance of the fact that the assessee appellant had failed to comply with the notices which were issued by him, therein, on the said count itself, dismissed his appeal.
The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before me.
I have heard the ld. authorized representatives of both the parties, perused the orders of the lower authorities as well as material available on record.
At the very outset of hearing of the appeal, Shri R.B Doshi, Ld. Authorized Representative (for short ‘AR’) for the assessee has assailed the dismissing of the assessee’s appeal in limine by the CIT(Appeals), NFAC.
4 Tikamchand Rathi Vs. ITO-3(1), Raipur Elaborating his contention, it was submitted by the Ld. AR that initially the case of the assessee was taken up for physical hearing before the CIT(Appeals), wherein, written submissions were filed by the assessee on 19.12.2018. Carrying his contention further, it was averred by the Ld. AR that pursuant to the appeal having been transferred to faceless regime, the assessee has once again uploaded his reply dated 19.12.2018 (supra) on 09.06.2023. The Ld. AR in order to fortify his aforesaid contention, took us through Page 1 of APB which evidenced that reply dated 19.12.2018 was uploaded in the course of the proceedings before the CIT(Appeals), NFAC. It was submitted by the Ld. AR that though the assessee had furnished his written submission in the course of the proceedings before the first appellate authority, but the latter had grossly erred in dismissing the appeal without considering the same.
Per contra, the Ld. Departmental Representative (for short ‘DR’) relied on the orders of the lower authorities. However, on being specifically confronted with the reply dated 09.06.2023 wherein the assessee had uploaded its written submissions dated 19.12.2018 in the course of faceless proceedings before the CIT(Appeals), NFAC, the Ld. DR fairly admitted that apparently there was omission on the part of the first appellate authority in 5 Tikamchand Rathi Vs. ITO-3(1), Raipur not considering the reply dated 09.06.2023 r/w. 19.12.2018 that was filed by the assessee.
Ostensibly, on a perusal of the records, it transpires that the assessee in the course of the proceedings before the CIT(Appeals) had filed his written submissions dated 19.12.2018, Page 3 to 14 of APB. Therefore, when the matter was transferred to faceless regime before the CIT(Appeals), NFAC, the assessee had once again vide his letter dated 09.06.2023 uploaded his reply dated 19.12.2018 along with enclosures. The aforesaid factual position can safely be gathered from a perusal of the e-proceedings Response Acknowledgement, Page 1 to 2 of APB. As is discernible from the order of the CIT(Appeals), I find that he had neither made any reference about the written submissions that were filed by the assessee on 19.12.2018 nor there is any whisper in his order about the uploading of the aforesaid details/documents by the assessee on 09.06.2023 vide acknowledgement No.215877711090623. Considering the aforesaid factual position, I am of the considered view that the matter in all fairness requires to be restored to the file of the CIT(Appeals) with a direction to him to re-adjudicate the same after affording a reasonable opportunity of being heard to the assessee.
6 Tikamchand Rathi Vs. ITO-3(1), Raipur
As I have restored the matter to the file of the CIT(Appeals) for fresh adjudication, therefore, I refrain from adverting to the merits of the case which, thus, are left open.