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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
This appeal has been filed by the assessee against the order of the Ld. CIT(A) National Faceless Appeal Centre (NFAC), Delhi dated 07.12.2022 in respect of Assessment Year 2017-18.
2. The assessee has raised the following grounds of appeal:
“1. The order passed u/s 144 of the Act is bad in law, as entire assessment is based on presumptions.
The order passed u/s 144 is bad in law as the AO failed to appreciate the nature of business of assessee before passing order and merely on surmises of assessee not willing to participate in proceedings when no notice was served.
3. The CIT(A) erred in both facts & law by confirming addition of Rs. 1930091 because the facts of the UT of J&K being under lockdown during he notices period were not recorded and considered while framing the second appeal order, he CIT(A) also treated the non-compliance by first counsel of assessee as detrimental to cause of assessee which highly prejudicial to the interest of assessee.
4. Other grounds of appeal as filed in the statement.
That, the assessment is based on mere presumptions and conjectures.
The appellant craves leave to add, amend, modify, withdraw any ground of appeal at the time of hearing and before the appeal is disposed off.”
The Ld. AR contended that the delay of 43 days was caused on account of change of counsel as the previous counsel has intentionally delayed and Accordingly, he was changed. The condonation of delay application is as under:
“I received the order of Commissioner (Appeals) on 15/02/2023, in my case for assessment year 2017-18. Being aggrieved by the said order I requested my Advocate Mr. Ferdous Atta Mohammad, to prefer an appeal to the Hon’ble
Fayaz Ahmad Kadla v. ITO Appellate Tribunal after the time in filing the appeal had passed. The same was due to my previous counsel who had not given me proper intimation about the disposal of my first appeal in time. The delay caused is neither intentional nor deliberate.
My affidavit detailing the aforesaid facts and these may kindly be placed before the Hon’ble Appellate Tribunal for condonation of the short delay in submission of the appeal.”
Considering the genuine cause, the short delay of 43 days is condoned and appeal is admitted on merits.
5. At the outset, the Ld. AR submitted that the LD. CIT (A) relying on the decision of the Hon’ble, ITAT, Delhi Bench, in the case of CIT Vs Multiplan India Ltd. reported in 38-ITD-320 and the judgement of the Hon’ble Madhya Pradesh High Court in the case of Estate of Late Tukoji Rao Holker Vs. CWT (1997) reported in 223-ITR-480 has dismissed the appeal ex parte qua the assessee.
5.1 The Ld. AR argued that the AO passed the assessment order u/s 144 of the Act based on presumptions without appreciate the nature of business and service of notice. The CIT(A) has confirmed addition of Rs. 19,30,091/- by ex parte order without appreciating the facts that the state of the UT of J&K was being under lockdown during that period. He prayed that the matter may be remanded to the AO to pass de novo assessment with the undertaking to cooperate before the AO.
Fayaz Ahmad Kadla v. ITO 6. Having heard both the sides and perusal of record, we found an undisputed fact on record that both the authorities below passed order ex parte qua the assessee which in gross violation of principles of natural justice. Accordingly, we consider it deem fit to remand the matter back to the file of the AO to pass the assessment order De Novo after granting sufficient opportunity of being heard to the assessee and he shall issue a show cause notice to the assessee before passing the final order. No doubt, the assessee shall cooperate in the fresh proceedings before the AO. Thus, the matter is remanded to the AO.
In the result, the appeal is allowed for statistical purpose.
Order pronounced in the open court on 22.06.2023