DEEPALI SHANKAR SURYAWANSHI,NAVI MUMBAI V. INCOME TAX OFFICER - 28(1)(1), MUMBAI, MUMBAI

ITA 3630/MUM/2024

AI Insights

The case involves an appeal by Deepali Shankar Suryawanshi against the order of the National Faceless Appeal Centre (NFAC), which was decided ex parte due to the appellant's failure to make submissions despite multiple notices. The appellant contested that the notices were not effectively served, and thus, the CIT(A) erred in dismissing the appeal without a proper hearing. The Tribunal agreed with the appellant, noting the lack of evidence that the notices were served, and emphasized the importance of an effective opportunity of hearing as a fundamental right under the Income-tax Act.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 24097 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH CHANDRA SINHA
• Assessee Lawyers: PRATEEK JAIN
• Keywords: Set aside
• Section: 250

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “SMC”, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI RAJ KUMAR CHAUHAN, JUDICIAL MEMBER ITA No.3630/Mum/2024 (Assessment Year : 2016-17) Deepali Shankar Suryawanshi Shop No.6, VIMLA PLAZA CHS, Plot No.16, Sector-5, Ghansoli Maharashtra-400 701 PAN : DIMPS1104L vs Income-tax Officer-28(1)(1) Vashi Railway Station Building, Navi Mumbai APPELLANT RESPONDENT Assessee by : Shri Prateek Jain Respondent by : Shri Umesh Chandra Sinha Date of hearing : 13/11/2024 Date of pronouncement : 06/02/2025 O R D E R PER RAJKUMAR CHAUHAN: This appeal is directed against the order dated 15/05/2024 passed by National Faceless Appeal Centre, Delhi (NFAC)[hereafter called ‘Ld.CIT(A)’] passed under section 250 of the Income-tax Act, 1961 of the Income-tax Act, 1961 (in short, ‘the Act’) wherein the appeal of the assessee was decided exparte on the ground that appellant-assessee has failed to make any submission despite issuing of notice on 3 occasions by the Learned first appellate authority. 2 ITA No.3630 /Mum/2024 Deepali Shankar Suryawanshi 2. On perusal of the impugned order, it is noticed that the Ld.CIT(A) has proceeded to decide in the appeal on merit holding that the appellant has failed to make any submissions despite opportunity given, therefore, he was constrained to concur with the finding of Learned Assessing Officer in the absence of any meaningful or worthwhile submissions from the assessee. 3. We have heard the Ld.AR and the Ld.DR and also perused the materials available on recorded. It was submitted that the Ld.CIT(A) has decided the appeal without giving effective opportunity of hearing to the assessee-appellant as there is no proof that the alleged notice / communication sent to the assessee- appellant on 12/06/2023, 10/04/2024 and 18-04-2024 were ever served upon the assessee. It is, therefore, argued that the impugned order has resulted into miscarriage of justice and the appellant-assessee needs to be heard by the Ld.CIT(A). Therefore, the impugned order may be set aside and the matter be restored to the file of the CIT(A). 4. The Ld.DR, on the other hand, submitted that there is no illegality in the impugned order as it is the assessee-appellant, who failed to make submission before the Ld.CIT(A) despite opportunity given on three occasions. Therefore, the Ld.DR supported the order of the Ld.CIT(A) and prayed for dismissal of the appeal. 5. We have considered the rival submission and examined the record. Section 250(2) of the Act Provides as below:- (2) The following shall have the right to be heard at the hearing of the appeal- (a);xxxxxxxxxxxxxxxxxxxxxxxxx (b)the [Assessing Officer] [ Substituted by Act 4 of 1988, Section 2, for \" Income-tax Officer\" (w.e.f. 1.4.1988).], either in person or by a representative. 3 ITA No.3630 /Mum/2024 Deepali Shankar Suryawanshi 6. The observation of the Ld.C IT(A) at paras 6.1 and para 10 of the impugned order, has held as under:- “6.1 Before considering the grounds of appeal filed by the appellant, it is pertinent to note that in order to decide this appeal in a timely manner notices/communications were sent to the appellant on 12.06.2023, 10.04.2024, 18.04.2024. However there has been no response from the appellant till date, The appellant has not filed any written submissions nor any evidences in support of the grounds of appeal. There is no gainsaying that once the appeal is filed by the appellant, it is obligatory on his part to purposefully and co- operatively pursue the same in a worthwhile manner, which the appellant has evidently failed to do. It clearly shows that the appellant is not interested in pursuing this appeal in any productive manner. Under these circumstances, this appeal is liable to be dismissed in terms of the ratio of the judgments of the Hon'ble Apex Court and the various High Courts 7………………. to 9……………………. 10. In view of the discussion in the preceding paragraphs, I am constrained to concur with the AO's findings of fact and decisions thereof, more particularly in the absence of any meaningful and worthwhile submissions/documentations even during the instant appellate proceedings, to counter effectively the position adopted by the AO on the concerned issues and reduced in writing in the assessment order. It is trite that the appellate authority is essentially called upon to balance the two sides of an argument presented before him as held in Nirmal Singh an Others of the Hon’ble Punjab and Haryana High Court [Cr Bi,3791 if 2013 (O & M) dated 01.05.2014 and in the absence of any reasonable, cogent and valid arguments / contentions advanced by the appellant in the instant appeal to counter the AO’s decision as contained in the assessment order, as mentioned earlier, the addition made by the AO is sustained.” 4 ITA No.3630 /Mum/2024 Deepali Shankar Suryawanshi It is evident from the above observation of the Ld.CIT(A) extracted above that no effective opportunity of hearing has been given to the assessee before passing the impugned order. There is nothing on record to show that the notices sent on 12/06/2023, 10/04/2024 and 18-04-2024 were served on the assesse-appellant. In these circumstances, we are of the considered opinion that the impugned order has resulted in miscarriage of justice as affording an effective opportunity of hearing is sine qua non of the provisions of section 250(2) of the Act and the Ld.CIT(A) has failed to give the effective opportunity of hearing to the assessee- appellant while passing the impugned order. The impugned order is accordingly set aside and the matter is restored to the file of the Ld.CIT(A) with the direction to decide the appeal de novo after providing adequate opportunity of hearing. The appellant-assessee shall make the submission / necessary documents, if so required by the CIT(A) within a period of sixty days of this order. 7. In the result, the appeal filed by the assessee bearing ITA No.3485/Mum/2024 is allowed for statistical purpose. Order pronounced in the open court on 06th day of February, 2025. Sd/- sd/- (B.R. BASKARAN) (RAJKUMAR CHAUHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, दिन ांक/Dated: 06/02/2025 Pavanan 5 ITA No.3630 /Mum/2024 Deepali Shankar Suryawanshi Copy of the Order forwarded to: 1. अपील र्थी/The Appellant , 2. प्रदिव िी/ The Respondent. 3. आयकर आयुक्त CIT 4. दवभ गीय प्रदिदनदि, आय.अपी.अदि., मुबांई/DR, ITAT, Mumbai 5. ग र्ड फ इल/Guard file. BY ORDER, //True Copy// (Asstt. Registrar), ITAT, Mumbai Details Date Initials Designation 1 Draft dictated on PC on 29.01.2025 Sr.PS/PS 2 Draft Placed before author 29.01.2025 Sr.PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member JM/AM 5. Approved Draft comes to the Sr.PS/PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS/PS 7. File sent to the Bench Clerk Sr.PS/PS 8 Date on which the file goes to the Head clerk 9 Date of Dispatch of order "