What did the Tribunal hold?

The Tribunal found merit in the assessee's plea that the CIT(A) order was passed without considering the remand report and without proper opportunity. Therefore, the order of the CIT(A) was set aside.

The assessee appealed against an ex-parte order by the CIT(A) which confirmed an addition of Rs. 7,00,000 on account of unexplained investment. The assessee argued that the CIT(A) order was passed without considering the remand report and without providing an opportunity to be heard.

What were the issues?

Whether the CIT(A) order was passed in violation of principles of natural justice and without considering relevant evidence. Whether the addition on account of unexplained investment was justified without proper adjudication.

Arun Kumar Kesharwani, New Delhi vs ITO | ITAT Delhi 2023

Income Tax Appellate Tribunal, DELHI BENCH “SMC” DELHI

Before: SHRI KUL BHARAT & SHRI PRADIP KUMAR KEDIA

For Appellant: Shri Rohan Sogani, CA

For Respondent: Shri Om Parkash, Sr.DR

The captioned appeal has been filed by the Assessee against the order of the Commissioner of Income Tax (Appeals), NFAC, Delhi (‘CIT(A)’ in short) dated 01.12.2022 arising from the assessment order dated 19.12.2018 passed by the Assessing Officer (AO) under Section 144 of the Income Tax Act, 1961 (the Act) concerning AY 2012-13.

The grounds of appeal raised by the assessee read as under:

“1. In facts and circumstances of the case and in law, ld. CIT(A)/National Faceless Appeal Centre ("NFAC") erred in passing the order, in first appellant proceeding, ex-parte, against the principles of natural justice. The action of ld. CIT(A)/NFAC is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the entire order passed by ld. CIT(A)/NFAC, being illegal and passed without following the principles of natural justice.

2. In the facts and circumstances of the case and in law, ld. CIT(A)/NFAC has erred in, confirming the action of ld. AO, in making addition of Rs.7,00,000 on account of unexplained investment. The action of ld. CIT(A)/NAC is illegal, unjustified and arbitrary and against the facts of the case. Relief may please be granted by deleting the entire addition made by ld. AO land confirmed by ld. CIT(A)/NFAC.”

When the matter was called for hearing, the ld. counsel for the assessee pointed out that relevant evidences in support of return of income were duly filed before the CIT(A) in the physical hearing. A remand report was also obtained by the CIT(A) dated 28.07.2020. However, the matter was thereafter transferred to faceless dispensation and an order was passed by CIT(A) NFAC. The first appellate order was passed without taking cognizance of the remand report and also without opportunity to the assessee. The ld. counsel pointed out that the source of investment in question was duly explained to the Assessing Officer in the remand proceedings and thus additions confirmed by the CIT(A) is uncalled for.

In the light of the submissions made on behalf of the assessee and having regard to the remand report referred to and relied upon, we find justification in the plea of the assessee towards attendance before the CIT(A). The first appellate order however has been passed without taking note of the remand report.

Under the circumstances, we set aside the order of the CIT(A) and restore the entire issue back to the file of the Assessing Officer for fresh adjudication in accordance with law to prevent miscarriage of justice.

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

Order pronounced in the open Court on 17/04/2023.

ARUN KUMAR KESHARWANI,NEW DELHI vs. ITO WARD-67(2), NEW DELHI

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