M/S. BHAWANI DEVELOPERS, NAGPUR V. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCL-2(1), NAGPUR

ITA 314/NAG/2022

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2601 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-04-2024
• Assessment Year: 2010-2011
• Appeal Filed On: 28-09-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANOJ G. MORYANI AW
• Keywords: Unexplained expenditure
• Section: 132; 40A(3); 143(3); 250; 143(2); 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE JUSTICE (RETD.) C.V. BHADANG, PRESIDENT AND SHRI R.K. PANDA, VICE PRESIDENT ITA no.314/Nag./2022 (Assessment Year : 2010-11) ITA no.315/Nag./2022 (Assessment Year : 2011-12) ITA no.316/Nag./2022 (Assessment Year : 2012-13) M/s. Bhawani Developers Laxmi Sada Apartment Wardha Road, Nagpur PAN – AAJFB8067D ................ Appellant v/s Asstt. Commissioner of Income Tax Central Circle–2(1), Nagpur ................ Respondent Assessee by : Shri Manoj G. Moryani a/w Shri Bhavesh Moryani Revenue by : Shri Kailash C. Kanojiya Date of Hearing – 30.04.2024 Date of Order – 30/04/2024 O R D E R PER R.K. PANDA, VICE PRESIDENT The aforesaid appeals have been filed by the assessee challenging the impugned orders of even date 08/03/2022, passed under section 250 of the Income Tax Act, 1961 ("the Act") by the learned Commissioner of Income Tax (Appeals)–3, Nagpur, [“the learned CIT(A)”], for the assessment year 2010- 11, 2011-12 and 2012-13. M/s. Bhawani Developers ITA no.314/Nag./2022 ITA no.315/Nag./2022 ITA no.316/Nag./2022 Page | 2 ITA no.314/Nag./2022 Assessee’s Appeal – A.Y. 2010-11 2. The assessee has raised following common grounds:- “1. The Ex-party order passed is illegal, invalid and bad in law. 2. On the facts and in the circumstances of the case the Commissioner of Income Tax (Appeals)-3, Nagpur erred in confirming addition without accepting the contention that notice dated 16/02/2022 for fixing of appeal for hearing on 22/02/2022 was received on 02/03/2022 i.e. after fixation of appeal, therefore ex-parte order passed is unjustified, unwarranted and excessive. 3. On the facts and in the circumstances of the case the CIT(A)-3, Nagpur erred in not considering the adjournment application of the assessee dtd. 03/03/2022 and without considering the same the ex-party order passed on 08/03/2022 is illegal, invalid and bad in law. 4. On the facts and in the circumstances of the case the Commissioner of Income Tax (Appeals)-3, Nagpur erred in considering that the assessee has not received any of the notices except notice dated 11/06/2018 for which adjournment application were filed for fixation of hearing before 12/01/2022, therefore without service of any notice ex-parte order passed is unjustified, unwarranted and excessive. 5. The appellant seeks permission to add any other ground of appeal or amend or alter the aforesaid ground of appeal at the time of hearing of the appeal.” 3. Since all these appeals pertain to the same assessee involving common issues arising out of identical set of facts and circumstances, therefore, as a matter of convenience, these appeals were heard together and are being disposed off by way of this consolidated order. 4. Facts in brief are that the assessee is a Partnership firm engaged in the business of building construction. A search and seizure action was initiated u/s 132 of the Act in the case of Kondawar Group of Nagpur on 07/03/2013, during which certain incriminating materials M/s. Bhawani Developers ITA no.314/Nag./2022 ITA no.315/Nag./2022 ITA no.316/Nag./2022 Page | 3 relating to the assessee were found. Notices dated 08/08/2024, were issued u/s 153C of the Act which were served upon the assessee, in response to which the assessee filed its return of income on 21/01/2015, declaring total income at ` 1,20,900. Thereafter, statutory notices u/s 143(2) of the Act was issued on 22/01/2015, which was served upon the assessee on 21/01/2015, and in response to which the assessee filed certain details. The A.O. completed the assessment u/s 153C r/w section 143(3) of the Act by determining total income at ` 17,91,400 by making addition of `.2,60,000 u/s 40A(3) of the Act and ` 14,10,500, on account of unaccounted expenditure. Since the assessee did not appear before the learned CIT(A) despite a number of opportunities granted to the assesse, the learned CIT(A) in the ex-parte order passed by him, dismissed the appeals of the assessee. The assessee being aggrieved, filed appeal before the Tribunal. 5. Before us, the learned Counsel for the assessee submitted that the assessee had requested for adjournment to the notices issued on 11/06/2018, thereafter due to COVID period, the assessee could not appear before the learned CIT(A). Referring to various dates mentioned by the learned CIT(A) in the order passed by the learned CIT(A), he submitted that six notices were issued during the peak COVID period. He accordingly, submitted that in the interest of justice, the assessee should be M/s. Bhawani Developers ITA no.314/Nag./2022 ITA no.315/Nag./2022 ITA no.316/Nag./2022 Page | 4 given one more opportunity to appear before the learned CIT(A) to substantiate its case. 6. The learned D.R. strongly opposed the submissions made by the learned Counsel for the assessee and submitted that despite a number of opportunities granted by the learned CIT(A), the assessee did not appear before him, therefore, the order of the learned CIT(A be upheld. 7. We have heard the rival arguments made by both the parties and perused the material available on record. It is an admitted fact that the learned CIT(A) has issued a number of notices to the assessee but the assessee did not appear before the learned CIT(A) except on one occasion seeking adjournment. However, it is also a matter of fact that six notices were issued during the COVID period and the order was also passed during the COVID period. Considering the totality of the facts of the case and in the interest of justice, we deem it fit and proper to restore the issue to the file of the learned CIT(A) with a direction to grant one final opportunity to the assessee to substantiate its case and decide the issue as per fact and in law. The assessee is also hereby directed to appear before learned CIT(A) on the appointed date without seeking any adjournment under any pretext failing which the learned CIT(A) is at liberty to pass appropriate order in accordance with law. We hold and direct accordingly. The Grounds raised by the assessee are accordingly allowed for statistical purposes. M/s. Bhawani Developers ITA no.314/Nag./2022 ITA no.315/Nag./2022 ITA no.316/Nag./2022 Page | 5 8. In the result, appeal filed by the assessee is allowed for statistical purposes. ITA no.315/Nag./2022 and ITA no.316/Nag./2022 Assessee’s Appeal – A.Y. 2011-12 & 2012-13 9. After hearing the rival parties, we find that the grounds raised in these appeals are identical to the grounds raised by the assessee in its appeal for the assessment year 2010-11, which we have already decided by restoring the appeal to the file of the learned CIT(A). Since the grounds raised in these appeals are identical, therefore, the above two appeals are also restored to the file of the learned CIT(A) for fresh hearing after granting reasonable opportunity of being heard to the assessee. Accordingly, all the grounds raised in these appeal are allowed for statistical purposes. 10. To sum up, all the three appeals by the assessee are allowed for statistical purposes. Order pronounced in the open Court on 30/04/2024 Sd/- JUSTICE (RETD.) C.V. BHADANG PRESIDENT Sd/- R.K. PANDA VICE PRESIDENT NAGPUR, DATED: 30/04/2024 M/s. Bhawani Developers ITA no.314/Nag./2022 ITA no.315/Nag./2022 ITA no.316/Nag./2022 Page | 6 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Nagpur; and (5) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Sr. Private Secretary ITAT, Nagpur