SHRI. GURMEET SINGH BADWAL, PHAGWARA V. INCOME TAX OFFICER WARD-1, PHAGAWARA

ITA 336/ASR/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0747 (ITAT-AMRITSAR)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-05-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 20-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 148; 142(1); 250; 251; 246A; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DAS GUPTA, JUDICIAL MEMBER I.T.A. No.336/Asr/2023 Assessment Year: 2011-12 Grumeet Singh Badwal, St. No. 3, Mohalla Preet Nagar, Phagwara. [PAN:BQRPS6145N] (Appellant) Vs. ITO, Ward (1), Phagwara. (Respondent) Appellant by Sh. Y. K. Sud, CA Respondent by Sh. Yashender Garg, Sr. DR Date of Hearing 30.05.2024 Date of Pronouncement 26.07.2024 ORDER Per: Udayan Das Gupta, JM This appeal is preferred by the assessee against the order of the Ld. CIT (A) NFAC, order dated 20/09/2023, passed u/s 250 of the Act 61, for A.Y. 2011-12, which in turn has emanated from the order of the AO dated 20.12.2018 passed u/s 144/147 of the Act 1961. 2. The grounds of appeal taken by the assessee are as under: “1. That the CIT(A) was not justified in dismissing the appeal of the assessee on non-prosecution I.T.A. No.336/Asr/2023 Assessment Year: 2011-12 2 2. That the CIT(A) was duty bound to dispose off the appeal on merits even if decided on ex-party basis. 3. That no proper opportunity was given to the assessee for filing the detailed submissions in support of the grounds of appeal. 4. That CIT(A) ought to have deleted the addition on account on unexplained cash deposited in the bank amounting to Rs. 4524700 made by the AO on account of income from undisclosed sources u/s 69/69A of the Income Tax Act 1961. 5. That the CIT(A] failed to appreciate that even if the addition on account of deposits in the bank was to be made the telescoping of the deposits after considering the withdrawals should have been done. 6. That the orders of AO & CIT(A) are against the Law & Facts of the case.” 3. At the time of hearing before the Tribunal, the assessee has also filed the additional ground: “1. That all the notices issued u/s 133(6), 148, affixture orders, 142(1), 144 are issued in the name of‘‘Gurmeet Singh Badwal & Daljit Kaur” and even the reasons recorded, and. sanctions granted by Pr. C1T are in the name of “Gurmeet Singh Badwal & Daljit Kaur” Hence no proper notice as required under the Act has been issued or served upon the assessee. I.T.A. No.336/Asr/2023 Assessment Year: 2011-12 3 2. That assessment framed in the capacity of individual is also in the names of “Gurmeet Singh Badwal & Daljit Kaur” and deserved to be quashed.” 4. Facts of the case are that an amount of Rs.45,24,700/- was deposited in ICICI Bank Account No. 632101506058 during F.Y. 2010-11 relevant to the assessment year under appeal. 4.1 The account was in the name of “Gurmeet Singh Badwal and Daljit Kaur” without any PAN, linked to the said account, so the STATUS of the account holder was not transparent. 4.2 In absence of any return on record proceedings where initiated by issue of notice u/s 148 dated 17.03.2018, after obtaining necessary approval from the higher authorities. 4.3 During the course of assessment proceedings there was no compliance before the AO, even though, numerous opportunities were allowed through service of notices vide different modes at the address available in the bank statement. The assessment was completed on a total income of Rs.45,24,700/- against which the matter was carried in appeal before the first appellate authority. 4.4 The first appellate authority sustained the addition and dismissed the appeal without adjudicating on merits, on the ground that there has been no compliance to notice issued to the appellant on four different occasions. I.T.A. No.336/Asr/2023 Assessment Year: 2011-12 4 5. Now, the assessee is before the tribunal against the said order on the various grounds contained in the memorandum of appeal in form no. 36. 6. In course of hearing before the Tribunal, the ld. AR of the assessee filed a paper book containing 29 pages, which includes the copies of notices issued by the AO calling for information regarding verifications of financial transactions, calling for information u/s 133 (6), copy of notice u/s 148, and evidence of affixture of notice under Rule 20 of CPC 1908 and all subsequent notices issued u/s 142(1) of the Act. 7. The ld. AR argued that the notice issued u/s 148 has been issued in the name of (Sh. Gurmeet Singh Badwal and Daljit Kaur), which is not a proper notice because the name of individual assessee is not mentioned therein and as such the said notice deserves to be quashed. 7.1 Apart from that he has also argued that the ld. CIT(A) has dismissed the appeal without adjudication on merits of the case on the grounds that there has been no representation from the assessee and no submissions were filed in response to the various notices that has been issued. 8. The ld. DR relied on the order of the ld. CIT(A) and on the findings of the AO in the assessment order and submits that in the instant case, the bank account with ICICI Bank, which is the basis of issue of notice u/s 148 is in the name of I.T.A. No.336/Asr/2023 Assessment Year: 2011-12 5 “Sh. Gurmeet Singh Badwal and Daljit Kaur” bearing address at Street No. 3 Mohalla Preet Nagar, Phagwara. 8.1 He further submits that the said bank account is not linked to any PAN, so, it is very difficult to speculate as to the status of the assessee, whether it is AOP, or BOI or Unregistered Partnership Firm or HUF or anything else. So, it was not possible for AO to issue notice u/s 148 on any specific person without determining the status of the account holder because it is the transaction in the bank which has formed the basis, of issue of notice, more so, considering the fact that numerous letters has been issued to the address of the noticee, requesting for information of verification of financial transactions, but there has been no compliance and no reply from the noticee. 8.2 He further argued that the assessment order has been passed without any PAN, because the STATUS was not disclosed before the AO, by the NOTICEE, and the AO has put the status as Individual, in the assessment order, for calculation of appropriate tax rates, and even otherwise, also in substance and effect the same is in conformity with or according to the intent and purpose of this Act, and as such covered by section 292B of the Act, 1961. 8.3 As such, he prays that the order of the ld. CIT(A) may be sustained. I.T.A. No.336/Asr/2023 Assessment Year: 2011-12 6 8.4 We have heard the submissions of both the counsels and we have considered the materials on record and we find that in this case, there has not been any compliance before the ld. CIT(A) in course of appellate proceedings. 8.5 It is seen from the order that notices on four separate occasions has been issued on the ITBA Portal of Mr. Gurmeet Singh Badwal against his PAN: BQRPS6145N because the appeal has been filed by Mr. Gurmeet Singh Badwal. Considering the ground of the assessee that no proper opportunity was given to the assessee for filing of submissions before the first appellate authority and also considering the fact that notice has been issued in ITBA Portal of the assessee and also considering the fact that the ld. CIT(A) has not decided the issue on merits of the case, we respectfully rely on the following High Court Judgments: 8.6 The appeal has also not been decided on merits, as is the requirement of law u/s 250(4) and 250(6) of the Act 1961, as observed by the Hon’ble Bombay High court in the case of CIT vs Prem Kumar Arjundas Luthra (2016) 240 Taxman 133 (Bombay). Relevant portion is reproduced as below: "............It is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the Assessing Officer to make further inquiry and report the result of the same to him as found in Section 250(4) of the Act. Further Section 250(6) of the Act obliges the CIT(A) to dispose of an appeal in writing after stating the points for determination and then render a decision on each of the points which arise for consideration with reasons in I.T.A. No.336/Asr/2023 Assessment Year: 2011-12 7 support. Section 251(l)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it dear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officer for passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CTT(A) is co-terminus with that of the Assessing Officer i.e. he can do all that Assessing Officer could do. Therefore, just as it is not open to the Assessing Officer to not complete the assessment by allowing the assessee to withdraw its return of income, it is not open to the assessee in appeal to withdraw and/or the CIT(A) to dismiss the appeal on account of non- prosecution of the appeal by the assessee. This is amply dear from the Section 251(l)(a) and (b) and Explanation to Section 251(2) of the Act which requires the CIT(A) to apply his mind to all the issues which arise from the impugned order before him whether or not the same has been raised by the appellant before him. Accordingly, the law does not empower the CIT(A) to dismiss the appeal for non- prosecution as is evident from the provisions of the Act." 8.7 On the issue of notice through ITBA portal, we are guided by the Hon’ble jurisdictional Punjab and Haryana High Court, in the case of Munjal BCU Centre, I.T.A. No.336/Asr/2023 Assessment Year: 2011-12 8 CWP-21028-2023 (O&M) dated 04.03.2024, where the Hon’ble court has observed that notice has to be issued as per provisions of section 282 of the Act 61, and simply uploading the same in departmental portal is not sufficient compliance. 8.8 Therefore, in the interest of justice, we remit the matter back to the CIT(A) to consider the matter afresh after affording proper and reasonable opportunity of hearing to the appellant and to decide the issues contained in the memorandum of appeal and the additional ground taken by the assessee on merits. 9. We have not expressed any views on the merits of the case. 10. In the result, the appeal of the assessee bearing ITA No. 336/Asr/2023 is allowed for statistical purposes. Order pronounced in the open court on 26.07.2024 Sd/- Sd/- (Dr. M. L. Meena) (UDAYAN DAS GUPTA) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order