Ameen Uddin, Bhopal V. The ITO 3(4), Bhopal

ITA 101/Ind/2023

AI Insights

The case involves Shri Ameen Uddin, who appealed against the order of the Commissioner of Income-Tax (Appeals), National Faceless Appeal Centre (CIT(A)-NFAC), which upheld the assessment order passed by the Income Tax Officer (ITO), Ward-3(4), Bhopal. The assessment order, issued under sections 147 and 144 of the Income-tax Act, 1961, for the assessment year 2008-09, added a sum of Rs. 10,09,000 as unexplained cash deposits in the assessee's bank account. The assessee contended that he did not receive the notices issued by the ITO, which led to the ex-parte assessment. During the appeal, additional evidences were submitted, which were not considered by CIT(A)-NFAC, leading to the current appeal before the Income Tax Appellate Tribunal, Indore.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130986 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-05-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 26-03-2023
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 147; 271(1)(c); 144; 142(1); 69A

Judgement Text

Page 1 of 8 आयकर अपीलȣय अͬधकरण, इंदौर Ûयायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER ITA No.101/Ind/2023 Assessment Year: 2008-09 Shri Ameen Uddin, 11, Kumharpura Road, Galla Bazar, Shahjahanabad, Bhopal बनाम/ Vs. I.T.O., 3(4), Bhopal (Assessee / Appellant) (Revenue / Respondent) PAN: AAUPU 8393 G Assessee by Shri S.S. Deshpande, C.A. Revenue by Shri Ashish Porwal, Sr. DR Date of Hearing 23.05.2023 Date of Pronouncement 19.07.2023 आदेश / O R D E R Per B.M. Biyani, A.M.: Feeling aggrieved by appeal-order dated 03.02.2023 passed by learned Commissioner of Income-Tax (Appeals), National Faceless Appeal Centre, [“Ld. CIT(A)-NFAC”], which in turn arises out of assessment-order dated 26.02.2016 passed by learned ITO, Ward-3(4), Bhopal [“Ld. AO”] u/s 147 read with section 144 of Income-tax Act, 1961 [“the Act”] for assessment year 2008-09, on the grounds mentioned in appeal memo. 2. Heard the learned Representatives of both sides at length and case- records perused. Shri Amin Uddin, Bhopal ITA No.101/Ind/2023 Assessment year 2008-09 Page 2 of 8 3. Brief facts leading to present appeal are such that the Department received information from “Non-PAN AIR data” that the assessee deposited a sum of Rs. 10,09,000/- in S.B. A/c maintained with Union Bank of India, Arera Hills, Bhopal. Based on such information, the AO issued notice u/s 148 on 27.03.2015 followed by statutory notices u/s 142(1) of the Act. However, finding no response from assessee, the AO framed assessment u/s 144 to the best of his judgement wherein he made an addition of Rs. 10,09,000/- u/s 69A equivalent to the amount of cash-deposits made by assessee in Bank A/c. Aggrieved, the assessee carried the matter in first appeal and made submissions but the CIT(A)-NFAC was not convinced and he upheld the AO’s action. Still aggrieved, the assessee has come in this appeal before us. 4. The Ld. AR for assessee straightaway drew our attention to para no. 2 of assessment-order and submitted that the AO has himself noted that the notices dated 12.10.2015 and 26.10.2015 u/s 142(1) were returned by notice-server with the remarks that there were four Houses of same No. 11 (assessee’s house is also No. 11) and the assessee could not be located. The AO has further noted that the Inspector of Income-tax Department was also deputed to serve another notice dated 17.12.2015 u/s 142(1) but even the Inspector could not find address despite making all efforts. This way, Ld. AR demonstrated that the notices issued by AO did not reach to assessee. He submitted that the subsequent notices dated 11.02.2016 and 19.02.2016 mentioned by AO to have been served through speed-post were also not received by assessee. Therefore, the assessee could not make compliance to any of the notices issued by AO. Further, the assessment-order passed by AO came to the knowledge of the assessee only when he received the penalty-orders passed u/s 271(1)(c) and 271(1)(b) of the Act, thereafter the assessee filed application to AO to supply certified copy of assessment-order. Ld. AR submitted that the assessee also apprised these facts to CIT(A)-NFAC during first appeal (Para No. 2 / Page No. 5 of order of first-appeal). Ld. AR submitted that the AO had to make assessment u/s 144 because the Shri Amin Uddin, Bhopal ITA No.101/Ind/2023 Assessment year 2008-09 Page 3 of 8 assessee did not receive notices and consequently could not file details/ documents/evidences. 5. Having explained the background of assessment u/s 144, Ld. AR submitted that during first appeal, the assessee filed an application dated 25.10.2017 to CIT(A)-II, Bhopal under Rule 46A of Income Tax Rules, 1962 for admission of additional evidences (Paper Book Page nos. 3 & 4). Thereafter, the CIT(A)-II, Bhopal called remand-report from AO vide his letter dated 22.05.2018 and in response to same, the AO filed his remand-report dated 24.08.2018 alongwith a forwarding letter dated 29.08.2018, which was received by office of CIT(A)-II, Bhopal on 30.08.2018 as is evident from inward-seal affixed by office of CIT(A)-II, Bhopal on top of the forwarding letter. Copies of forwarding-letter and remand-report are reproduced below: Shri Amin Uddin, Bhopal ITA No.101/Ind/2023 Assessment year 2008-09 Page 4 of 8 Shri Amin Uddin, Bhopal ITA No.101/Ind/2023 Assessment year 2008-09 Page 5 of 8 Shri Amin Uddin, Bhopal ITA No.101/Ind/2023 Assessment year 2008-09 Page 6 of 8 Shri Amin Uddin, Bhopal ITA No.101/Ind/2023 Assessment year 2008-09 Page 7 of 8 6. Referring to the contents of remand-report, Ld. AR successfully demonstrated that the assessee received cash sums of Rs. 4,50,000/- from Shri Sardar Rizwan Mohd. Khan and Rs. 4,00,000/- from Shri Javed Mohd. Khan for doing construction work, which the Ld. AO verified from additional evidences submitted by assessee during remand-proceeding before AO. Thereafter, in the last para of remand-report, the AO himself reported to CIT(A)-II, Bhopal to consider additional evidences on merit. Therefore, while deciding first-appeal of assessee, it was incumbent upon the CIT(A)-NFAC to consider the remand-report filed by AO. But, the CIT(A)-NFAC, in para no. “ix” on page no. 11 of his order, has mentioned that there is no evidence to support the case of assessee. Ld. AR submitted that this noting by CIT(A)- NFAC clearly shows that the remand-report is not considered by CIT(A)- NFAC; therefore the order passed by CIT(A)-NFAC is not an appropriate order and deserves to be set aside and the assessee’s case needs to be decided properly in the light of remand-report. 7. Ld. DR for the Revenue fairly accepted that the AO has reported in the remand-report to CIT(A)-II, Bhopal to consider the additional evidences but it appears from the appeal-order that the same has not been considered by CIT(A)-NFAC. Ld. DR left the matter to the wisdom of Bench. 8. We have considered the submissions of both sides. On a closer look, we find that initially the first-appeal was dealt by CIT(A)-II, Bhopal in manual system and thereafter the case was migrated to CIT(A)-NFAC (Para No. 1 on Page No. 2 of appeal-order), who passed final order disposing of first-appeal. Therefore, there might have occurred some lapse in communication in-between CIT(A)-II, Bhopal and CIT(A)-NFAC which has led to non-consideration of remand-report. Therefore, in the present case, it is most appropriate to remit this case back to the file of CIT(A)-NFAC who would decide the first appeal afresh after taking into account the remand- report and other submissions of assessee without being influenced by his earlier decision. Needless to mention that the CIT(A)-NFAC shall give Shri Amin Uddin, Bhopal ITA No.101/Ind/2023 Assessment year 2008-09 Page 8 of 8 reasonable opportunities to assessee to make submissions and the assessee shall also participate in the proceedings. 9. Resultantly, this appeal of assessee is allowed for statistical purpose. Order pronounced in the open court on 19/07/2023. Sd/- sd/- (VIJAY PAL RAO) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore Ǒदनांक /Dated : 19.07.2023 CPU/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Indore Bench, Indore