DALBIR SINGH, GURDASPUR V. ITO-6(4), GURDASPUR, GURDASPUR

ITA 297/ASR/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5032 (ITAT-AMRITSAR)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 26-06-2024
• Assessment Year: misc
• Appeal Filed On: 13-10-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Additional evidence; Set aside
• Section: 147; 144; 250; 69A; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (HYBRID COURT) BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DASGUPTA, JUDICIAL MEMBER I.T.A. No. 297/Asr/2023 Assessment Year: 2012-13 Dalbir Singh S/o Mehal Singh, H/No. 587/6, Gali Mahain Singh, Tibri Road, Gurdaspur [PAN: CDIPS 9552A] (Appellant) Vs. Income Tax Officer, Ward-6(4), Gurdaspur (Respondent) Appellant by Respondent by : : Sh. J. S. Bhasin, Adv. Sh. Radhey Shyam Jaiswal, Sr. D.R. Date of Hearing Date of Pronouncement : : 27.06.2024 13.08.2024 ORDER Per Udayan Dasgupta, J.M.: This appeal is filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals), passed u/s 250 of the Income Tax Act, 1961 dated 12.09.2023 for the Assessment Year: 2012-13 which has emanated from the order of the Assessing Officer dated 30.11.2019 passed u/s 144 r.w.s 147 of the I.T. Act, 1961 by the Income Tax Officer, Ward-6(4), Gurdaspur. 2 ITA No. 297/Asr/2023 Dalbir Singh v. ITO 2. The grounds of appeal taken by the assessee are as follows: “1. That the ld. CIT(A) was not justified in arbitrarily dismissing the appeal ex-parte without affording sufficient opportunity of hearing to assessee. 2. That enablement of communication window by system was not notice for hearing as misconstrued by ld. CIT(A). 3. That the impugned order, when not passed within 15 days of last hearing i.e. 25.10.2022 is unsustainable being contrary to Board Instructions dated 23.12.2003 and 19.06.2015. 4. That the ld. CIT(A) grossly erred in impliedly sustaining the ex-parte order of ld. AO when it suffered from legal infirmities of non service of 148 notice, illegal assumption of jurisdiction u/s 148 and illegal addition made u/s 69A for investment of Rs.3500,000/-. 5. That the order under appeal is wholly against law, perverse on facts, against natural justice, hence, liable to be set aside.” 3. The facts of the case are that the assessee has invested an amount of Rs.35,00,000/- for purchase of immovable property during the financial year 2011-12 (relevant to AY: 2012-13). In absence of any return filed by the assessee proceedings u/s 148 has been initiated by the AO and in absence of any response to notices 142(1), the Assessing Officer has treated the investment of Rs.35,00,000/- as unexplained as per the provisions of section 69A of the Act, 1961. Apart from the above, it was seen that the assessee has earned an amount of Rs.19,864/- as commission income from Birla Industries Co. Ltd. which were also added to the total income. During the course of appellate proceedings before the ld. CIT(A)/NFAC, it 3 ITA No. 297/Asr/2023 Dalbir Singh v. ITO was seen that there has not been any compliance by the assessee nor any written submission has been filed. Moreover, it was seen that the Memorandum of Appeal in Form No. 35 before the ld. CIT(A) did not contain the grounds of appeal and the statement of facts. In reply to specific query from the office of the ld. CIT(A), the assessee filed submissions is as follows: “With reference to your letter no.: ITBA/NFAC/F/APL-1/2022-23/1046223080(1), dated 10.10.2022, the appellant respectfully submit as under: 1. We are enclosing here with copy of Form 35 along with covering letter for your record and perusal. 2. We are further enclosing herewith copy of assessment order along with other notices issued by department from time to time. We are further enclosing herewith copy of Approval Letter u/s 151(1) of the Income Tax Act, 1961 to issue notice u/s 148 of the Income Tax Act, 1961 along with reason for the issue of notice u/s 148 of the Income Tax Act, 1961. 3. Appellant want to furnish additional evidences under rules 46A to the office of your goodself, which will be furnished by the appellant during next hearing. 4. Facts of case along with written submission will be furnished to the office of your goodself, which will be furnished by the appellant during next hearing.” Thereafter, it has been observed by the ld. CIT(A) that no further submission has been made by the assessee and the appeal has been dismissed. The ld. AR of the assessee filed an affidavit dated 14.05.2024 where it has been stated that the grounds of appeal as indicated in column 13 of Form 35 were filed “As per Annexure attached”. 4 ITA No. 297/Asr/2023 Dalbir Singh v. ITO “ That no defect notice was ever issue by the office of ld. CIT(A), neither when the appeal was manually filed on 24.09.2019, nor thereafter, when the appeal was fixed for hearing by the NFAC Delhi, pointing out any deficiency in appeal. Even the dismissal of appeal by the ld. CIT(A)/NFAC was not on account of any defect in appeal, but for not pursuing the appeal. That Form No. 35, filed with appeal before the Hon’ble ITAT was also downloaded from the portal, where the “Annexure” of grounds of appeal was missing. That it is hereby affirmed that ‘grounds of appeal’ were duly raised as per Annexure attached to Form No. 35 when manually filed, but missed out when uploading the return on e-portal of assessee. That form No. 35 with ANNEXURE bearing ‘grounds of appeal’ as now obtained from the earlier counsel Mr. Ranjan Shrivastav CA is appended to this affidavit for the kind information/record of the Hon’ble Bench of ITAT, Amritsar.” As such he prayed that it was not the fault of the assessee because grounds of appeal and statement of facts were already physically filed at the time of filing of appeal which was supposed to be uploaded by the department in the online portal before the appellate authority but the same has not been done. 4. The ld. DR relied on the order of the ld. CIT(A) and prayed for sustaining the appellate order. 5. We have heard the rival contention and considered the material on the record and we find that there has probably been inadvertent mistake whereby on the facts of the case the grounds of appeal might not have been uploaded on the online portal resulting in all sorts of confusions. On merits of the case, the ld. AR has argued that 5 ITA No. 297/Asr/2023 Dalbir Singh v. ITO the investment of Rs.35,00,000/- is out of sale proceeds of property sold by the mother of the assessee which has been jointly invested with the assessee. But all this information and submissions needs to be verified. As such in the interest of justice, we set aside the matter back to the file of the ld. CIT(A) for decision of the grounds of appeal contained in Form No. 35 on merits of the case after causing necessary verification and after obtaining necessary report from the AO as per the provisions of law and after affording reasonable opportunity of hearing to the assessee. The assessee is also directed to cooperate with the first appellate authority by submission of all information and explanations regarding the source of Rs.35,00,000/- invested for purchase of house property and to cooperate fully in the appellate proceedings. The assessee should be allowed a proper and reasonable opportunity of being heard. 6. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 13.08.2024 Sd/- Sd/- (Dr. M. L. Meena) (Udayan Dasgupta) Accountant Member Judicial Member *GP/Sr.PS* Copy of the order forwarded to: (1)The Appellant: (2) The Respondent: (3) The CIT concerned (4) The Sr. DR, I.T.A.T True Copy By Order