M/s Kamdhenu Sweets, Allahabad V. DCIT, Cir-1, Allahabad

ITA 19/ALLD/2022

AI Insights

The case involves M/s Kamdhenu Sweets, which appealed against the order of the CIT(A) (National Faceless Appeal Centre, Delhi) for the assessment year 2011-12. The appeal was directed against the assessment order passed under sections 147/143(3) of the Income Tax Act, which was confirmed by the CIT(A) through an ex-parte order. The assessee challenged the assessment and the manner of proceedings under section 148, as well as the additions made to their income. The Tribunal noted that the CIT(A) had dismissed the appeal due to non-submission of responses from the assessee despite multiple notices, and the final order was deemed non-speaking, leading to the decision to remand the case for a fresh hearing.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 114352 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-11-2022
• Assessment Year: misc
• Appeal Filed On: 15-09-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD ‘SMC’ BENCH (HEARD BY D.B.), ALLAHABAD BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER ITA No.19/ALLD/2022 Assessment Year: 2011-12 M/s Kamdhenu Sweets, 37, M.G. Marg, Allahabad PAN-AAFFK4903R v. Deputy Commissioner of Income Tax, Circle-1, Allahabad (Appellant) (Respondent) Appellant by: None Respondent by: Sh. A.K. Singh, Sr. D.R. Date of hearing: 17.11.2022 Date of pronouncement: 17.11.2022 O R D E R SHRI VIJAY PAL RAO, J.M.: This appeal by the assessee is directed against the order dated 20 th May, 2022 of CIT(A)(National Faceless Appeal Centre, Delhi) for the assessment year 2011-12. 2. None has appeared on behalf of the assessee when this appeal was called for hearing. Learned counsel for the assessee has filed an application for adjournment of hearing however, it is noted that an identical application was filed by the learned counsel for adjournment of hearing on the last date of hearing i.e. on 4.10.2022 and the case then adjourned to 18.10.2022. Thereafter, the case was again listed for today i.e. on 17.11.2022, as there was no Bench on the earlier dates. We further note that the impugned order of the CIT(A) has been passed ex parte and appeal of the assessee was dismissed summarily for want of submissions on behalf of the assessee therefore, we propose to hear and dispose of this appeal ex parte. 3. The assessee has raised the following grounds of appeal:- ITA No. 19/ALLD/2022 M/s Kamdhenu Sweets 2 “That in any view of the matter order passed u/s 147/143 (3) dated 30.11.2016 by the assessing officer and his action as confirmed by CIT (Appeal) by passing ex-parte order dated 20.05.2022 is highly unjustified, incorrect illegal hence liable to be cancel. That in any view of the matter in compliance to notice u/s 148 dated 11.03.2016 objection were filed before the concerned assessing officer challenging the proceeding u/s 148 as well as challenging the manner adopted for recording reasons but the objection as filed by the appellant remained un- disposed off by the assessing officer hence the assessment order is illegal. That in any view of the matter the learned CIT appeal was highly unjustified in passing ex-parte decision and before passing the order no proper opportunity allowed nor request for physical hearing considered hence the entire approach of the first appellate authority is incorrect and illegal. That in any view of the matter income as determined at Rs.35,58,040/- is highly unjustified incorrect and the disclosed income based on books of account supported by audit report liable to be accepted. That in any view of the matter addition of Rs.7,50,000/- as per para 8 of the order is highly unjustified and the basis of addition is simply adopted sale tax information hence addition is unwarranted and more so the observation of assessing officer that sale represent income is highly unjustified as the added amount is not the real income of the appellant rather artificial addition hence liable to be deleted. That in any view of the matter addition made and confirmed in original and subsequent proceeding is highly unjustified hence the declared income liable to be accepted. That in any view of the matter the decision cited by the lower authority are not applicable and the facts of the present case are different.” 4. We have heard the learned DR and perused the impugned order of the CIT(A). The CIT(A) has dismissed the appeal of the assessee by recording the fact that various notices were issued to the assessee but there was no response on behalf of the assessee nor any written submissions were filed. The relevant part in para 5 and 6 of the CIT(A) reads as under:- “5. The appellant was provided opportunity of being heard by way of issue hearing notice dated 24.12.2020 requesting the appellant to file written submissions and documents electronically through incometaxindia.efiling website on or before 30-12- 2020 for ITA No. 19/ALLD/2022 M/s Kamdhenu Sweets 3 necessary consideration while disposing this appeal. As there was no reply, another hearing notice dated was issued on 26-11-2021 asking the appellant to make the submissions on or before 13-12- 2021. The appellant again failed to respond to this notice and to another hearing notice issued on 23-02-2022 fixing the hearing on 04-03-2022 as well. The appellant again failed to respond to this notice and to another hearing notice issued on 08-03-2022 fixing the hearing on 21-03-2022 as well. Thereafter, a final notice was issued on 22-04-2022 calling for submissions on or before 27-04- 2022. However, the appellant has not submitted any written submission till date. 6. Though the appellant claims that the AO was not justified in making such assessment, he never put forth any reasons for claiming so. Even during current appellant proceedings, the appellant never came forward with his explanation to the grounds mentioned by the appellant despite being offered number of opportunities through hearing notices issued by this office. The onus lies on the appellant to prove his case before seeking relief in the appellate proceedings. On this front, appellant miserably failed. In these circumstances, it is deemed fit not to interfere with the assessment made by the AO. Accordingly, the addition made by the AO is upheld and grounds are dismissed.” 5. Earlier notices were issued for the hearings during the month of December, 2020 and subsequent year 2021 which was a Covid-19 Pandemic period and thereafter only one final notice issued on 22.04.2022 for the hearing on 27.04.2022 was after the Covid-19 Pandemic period. The CIT(A) has not discussed the issue involved in the appeal and dismissed the same summarily for want of any submissions on behalf of the assessee. Accordingly, the impugned order of the CIT(A) is a non-speaking order in contravention of the provisions of section 250(6) of the Income Tax Act. Hence, in the facts and circumstances of the case, we set aside the impugned order of the CIT(A) and matter is remanded to the record of the CIT(A) for re-adjudication of the appeal on merits after giving one more opportunity of hearing to the assessee. ITA No. 19/ALLD/2022 M/s Kamdhenu Sweets 4 6. In the result, the appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on conclusion of hearing on 17.11.2022 at Allahabad which is reduced in writing and signed on the date indicated below. Sd/- Sd/- [RAMIT KOCHAR] [VIJAY PAL RAO] ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 18/11/2022 Allahabad sh Copy forwarded to: 1. Appellant- M/s Kamdhenu Sweets 2. Respondent-DCIT, Circle-1, Allahabad 3. CIT(A), Allahabad 4. CIT 5. DR By order Sr. P.S.