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Income Tax Appellate Tribunal, LUCKNOW BENCH ‘SMC’ LUCKNOW
Before: SHRI SUDHANSHU SRIVASTAVA
This appeal has been preferred by the assessee against order dated 03.10.2023 passed by the Commissioner of Income Tax (Appeals), [hereinafter called the ‘CIT(A)] Kanpur-4 for Assessment Year (AY) 2021-22.
The brief facts of the case are that the assessee is an individual carrying on business of jewellary as a proprietorship concern under the name and style of ‘M/s. Kamesh Kumar Rakesh Kumar’. The assessee had e-filed his return of income for the Assessment Year 2021-22 declaring total income at Rs.14,84,650/-. However,
Aggrieved, the assessee approached the ld. First Appellate Authority challenging the additions made by the Assessing Officer. The ld. CIT(A) has dismissed the assessee's appeal for non prosecution, observing that notices dated 24/06/2023, 28.08.2023, 06.09.2023 and 15.09.2023 were issued to the assessee but no compliance had been made and that further no written submissions had been filed in support of any of the grounds of appeal taken.
Now, the assessee has approached this Tribunal challenging the dismissal of his appeal by raising the following grounds of appeal:
“01. BECAUSE, the CIT(A) has erred on facts and in law in summarily dismissing the appeal ex-parte without giving any opportunity of being hear. 02. BECAUSE, the CIT(A) has failed to appreciate the facts and circumstances of the case and should have passed a speaking order based on Statement of Fact and Ground of Appeal as mentioned in the Memorandum of Appeal.
03. BECAUSE on a proper consideration of facts and circumstances of the case, the order passed by the CIT(A) dismissing the appeal in default is bad in law, unjustified and be quashed.
04. BECAUSE without prejudice to the above, the CIT(A) has failed to give any finding with respect to the grounds of appeal.
05. BECAUSE the Assessing Officer has erred on facts and in law in addition of Rs.9,42,821/- being difference found at the time of survey, whereas survey has taken place on 02.12.2020 and stock registered maintained upto 30.10-.2020 (i.e. 3 days short) for which purposes the assessee has also offered Rs.6,12,745/- in view of purchases peace and 3 avoid litigation, the addition made by the AO as well as upheld by the CIT(A) are contrary to facts, unwarranted, arbitrary and uncalled for, be deleted.
6. BECAUSE during the time of survey, the assessee himself offered the amount of Rs.6,12,745/- to purchase peace and avoid future litigation. The difference was found that the stock registered maintained upto 30.10.2020 and survey taken place on 02.11.2020, the AO has ignored the bills during the period of 3 days and making an addition of Rs.9,42,821/- and also upheld by the CIT(A), which addition being without any basis the same be deleted.
7. BECAUSE the AO as well as CIT(A) upheld the amount of Rs.1,250/- being undisclosed sale of silver items, whereas the assessee already offered Rs.6,12,745/- for difference in stock of gold and silver ornaments on which tax already been paid by the assessee, hence the addition of Rs.1,250/- is unjust and bad in law, be deleted.
8. BECAUSE the difference found in the cash books and physical verification of the cash amounting to Rs.33,735/- is being offered by the assessee for taxation for purpose to peace of mind and avoid any ligation, the AO had making the addition of Rs.33,735/- and also upheld by the CIT(A) which addition is unjust and bad in law be deleted.
BECAUSE the appellant craves leaves to add or amend the grounds of appeal before the appeal is finally heard or disposed off.”
None was present for the assessee when the appeal was called out for hearing. However, an application seeking adjournment was placed before me citing some unavoidable circumstances (marriage in the family) as the reason for seeking adjournment. However, looking into facts of the case, I reject the adjournment application and proceed to adjudicate the appeal.
Since the order passed by ld. CIT(A) was an ex-parte order, the ld. Senior D.R. had no objection to the restoration of appeal to the ld. CIT(A).
I have heard ld. Departmental Representative and have perused the records. It is evident that there was complete non compliance on the part of the assessee during the course of first appellate proceedings. It is evident that the ld. CIT(A) had issued as many as four notices which remained un-complied with by the assessee. However, I am of the considered view that the assessee deserves one more opportunity to present his case and, therefore, in the interest of substantial justice, I restore this file to the Office of the ld. CIT(A) with the direction to provide one more opportunity to the assessee to present his case and I also caution the assessee to fully comply with the directions of the ld. CIT(A) in the set-aside proceedings when called upon to do so, failing which, the ld. CIT(A) shall be at complete liberty to pass the order in accordance with law, based on material available on record even if it is ex-parte qua the assessee.
In the final result, the appeal of the assessee stands allowed for statistical purposes.