GANESH NATARAJAN, MUMBAI V. COMMISSIONER OF INCOME TAX (APPEAL)-30, MUMBAI

ITA 2235/MUM/2023

• Counselvise Citation: [2023] 103 COUNSELVISE.COM (IT) 3881 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 03-10-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 20-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITHA V. NAIR
• Keywords: Unexplained investment; Opportunity of being heard; Bonafide mistake
• Section: 147; 143(3); 69B; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI SHRI N. K. CHOUDHRY, JM 1. I.T.A. No. 2235/Mum/2023 (Assessment Year: 2010-11) & 2. I.T.A. No. 2236/Mum/2023 (Assessment Year: 2011-12) Ganesh Natarajan 256/10117, Kannamwar Nagar No. 1 Vikhroli East, Mumbai Vs. CIT(A) –30, Mumbai PAN No. AHFPG 9553 Q Appellant) : Respondent) Appellant by : Shri Prakash Jotwani Respondent by : MS Smitha V. Nair Date of Hearing : 04.10.2023 Date of Pronouncement : 10.10.2023 O R D E R Per N. K. Choudhry, Judicial Member: The Assessee/appellant herein has preferred these appeals against the orders dated 01.03.2023 & 27.05.2023 impugned passed by National Faceless Appeal Centre, Delhi {in short ‘NFAC ’}/ Ld. Commissioner of Income Tax (in short “ Ld. Commissioner” u/s 250 of the Income Tax Act 1961 (in short ‘the Act’) for AY 2010-11 and 2011-12. 2 I.T.A. Nos. 2235 & 2236/Mum/2023 Ganesh Nataranjan . 2. As both the impugned orders are ex-parte and having involved identical issues, therefore, for sake of brevity, are being disposed of by this composited order. 3. ITA No. 2235/Mum/2023 is lead case, in which at the outset it has been observed that there is a delay of 52 days in filing of the instant appeal. The Assessee claimed that e-mail sent by the ld. CIT(A)’s office went into junk/span folder and therefore, the Assessee failed to know about any notice of hearing. However subsequently checking e- mail, it was found by the Assessee that various notices have been received from ld. CIT(A) and also an order was passed by ld. CIT(A) as ex-parte. It is fact that “No physical notices” were issued by ld. CIT(A) and therefore, the Assessee was not aware about any hearing before ld. CIT(A). Somehow the delay has been occurred in filing the instant appeal, which was not due to any willful or intentional default but in fact the same was due to bonafide mistake. The Assessee in support of said contentions also filed duly sworn affidavit. The ld. DR on the contrary refuted the claim of the Assessee. I have given thoughtful consideration the claim of the Assessee and in the absence of any contrary material, find the same as genuine and bonafide and therefore I am inclined to condone the delay, hence the same is condoned. 4. Coming to the merits of the case, I observe that the AO vide order dated 22 nd Dec, 2017 u/s 143(3) read with section 147 of the Act, assessed the income of the Assessee to the tune of Rs. 3 I.T.A. Nos. 2235 & 2236/Mum/2023 Ganesh Nataranjan . 14,47,500/- by making addition of Rs. 14,47,500/- u/s 69B of the Act as unexplained investment, which has been affirmed by the ld. CIT(A) vide impugned order against which the Assessee is in appeal before this bench. I observe that during the course of appellate proceedings, various notices have been issued to the Assessee however as the Assessee claimed that it was unable to see the notices sent by ld. CIT(A) as the notices sent through e-mail went into junk/span folder. Therefore, the Assessee was unable to know about the notices for the dates of hearing and exact status of appellate proceedings before the ld. CIT(A). Mr. Prakash Jotwani, Ld. Advocate also claimed that it is admitted fact that no physical notices have ever been issued to the Assessee however now, the Assessee will appear and co-operate with the appellate proceedings and therefore requested for remand back the case to the file of ld. CIT(A) for de novo adjudication. The ld. DR also suggested the same way out as requested by ld. AR. Hence considering the peculiar facts and circumstances of the case and for the just decision of the case and the ends of the justice and to resolve the controversy, I am inclined to remand the instant case to the file of the ld. CIT(A) for decision afresh, suffice to say by according reasonable opportunity of being heard to the Assessee. The Assessee is also directed to co-operate with the appellate proceedings and appear if requires and file the relevant document(s) which would be needed for proper and real adjudication of the case and in case of default, the Assessee shall not be entitled for any kind of leniency. Ordered accordingly. 4 I.T.A. Nos. 2235 & 2236/Mum/2023 Ganesh Nataranjan . 5. In the result, both the appeals filed by the Assessee are allowed for the statistical purposes, on the same terms. Order pronounced in the open court on 10 th Oct, 2023. Sd/- (N. K. Choudhry) Judicial Member मुंबई Mumbai;िदनांक Dated : 10/10/2023 PS, Ganesh Kumar (on tour) आदेशकीŮितिलिपअŤेिषत/Copy of the Order forwarded to : 1. अपीलाथŎ/ The Appellant 2. ŮȑथŎ/ The Respondent 3. िवभागीयŮितिनिध, आयकरअपीलीयअिधकरण, मुंबई/ DR, ITAT, Mumbai 4. गाडŊफाईल / Guard File आदेशानुसार/ BY ORDER, .उप/सहायकपंजीकार (Dy./Asstt.Registrar) आयकरअपीलीयअिधकरण, मुंबई/ ITAT, Mumbai