Himmatbhai Madhubhai Patel, Ahmedabad V. The Income Tax Officer, Ward-5(3)(3), Ahmedabad

ITA 355/AHD/2022

AI Insights

The case involves an appeal by Himmatbhai Madhubhai Patel against the order of the CIT(A), National Faceless Appeal Centre, Delhi, which upheld the addition of Rs. 29,00,000 as unexplained money under Section 69A of the Income Tax Act for the assessment year 2017-18. The assessee contended that the CIT(A) did not consider the evidence properly and violated the principles of natural justice by not providing a physical notice for the hearing, despite the assessee's request to avoid email communication. The Tribunal noted the failure of the CIT(A) to ensure proper service of notice and remanded the case for a fresh hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299971 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 12-04-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 12-09-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence
• Section: 143(2); 69A; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, AHMEDABAD BEFORE MS. SUCHITRA KAMBLE, JUDICIAL MEMBER I .T .A . No .3 55 /A h d / 20 22 ( A s se ss m e nt Y e a r : 20 17- 18 ) Hi m ma t bh ai Ma dh u bh a i Pa te l 9, Pr a k as h So c ie t y, O p p . S un r i se Par k , V a s tr a p ur , A h m ed a b a d V s . I T O War d - 5 ( 3) ( 3 ) , A h me da ba d [ P AN N o. A D ZP P3 6 02 M ] (Appellant) .. (Respondent) Appellant by : Shri Vivek Chavda, A.R. Respondent by: Shri Bholaram Devashi, Sr. D.R. D a t e of H ea r i ng 13.04.2023 D a t e of P r o no u n ce me nt 19.04.2023 O R D E R The appeal filed by the assessee is against the order passed by the Ld. CIT(Appeals), National Faceless Appeal Centre (in short “NFAC”), Delhi on 20.07.2022 for A.Y. 2017-18. 2. The grounds of appeal raised by the assessee are as under: “1.1 The order passed u/s. 3\250 on 20.07.2022 for A.Y.2017-18 by NFAC, Delhi upholding the addition of Rs.29,00,000/- made by AO is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT(A) has grievously erred in law and or on facts in not considering fully and properly the eccentric facts and evidence available with regard to the impugned additions. 1.3 The Ld. CIT(A) has grievously erred in law and on facts in not carrying out any inquiry with regard to the applicability of the provisions of Income tax Act and thereby violated the principle of natural justice. The appellant had specifically denied at the time of filing From No.35 to receive the notices on Email, however, the CIT(A) has kept on sending the same on Emails rather than sending physically which could not be served to the appellant. Therefore, the appellant shall be granted opportunity to produce additional evidences. 2.1 The Ld. CIT(A) has grievously erred in law and or on facts in upholding the addition of Rs. 29,00,000 u/s 69A as unexplained money. 2.2 That the Ld. CIT(A) ought not to have upheld addition of Rs.29,00,000/- as unexplained income u/s 69A. 3.1 The Ld. CIT(A) has grievously erred in law and or on facts in upholding the invocation of provision of Section 115BBE. 3.2 The Ld. CIT(A) as well as the AO ought to have directly trigger the provisions of Section 115BBE. ITA No. 355/Ahd/2022 Himmatbhai Madhubhai Patel vs. ITO Asst.Year–2017-18 - 2 - 3.3 The Ld. CIT(A) has failed to appreciate that levy of section 115BBE is not automatic. The Appellant must be granted the specific opportunity before triggering the provisions of section 115BBE. 4.1 The Ld. CIT(A) has grievously erred in law and or on facts in not granting opportunity of being heard via video conferencing. 4.2 The Ld. CIT(A) has failed to appreciate that granting opportunity of being heard via video conferencing facility is mandatory in the new regime of Faceless appeal process. 4.3 The Ld. CIT(A) ought to have granted opportunity of being heard via video conferencing facility upon specific request by the appellant. It is therefore prayed that the addition made by the Ld. AO and upheld by the CIT(A) may please be deleted in the interest of natural justice and considering the eccentric facts of the case.” 3. Assessee derives income from house property, agricultural income and income from other sources. Assessee filed return of income on 25.11.2017 declaring total income at Rs. 7,72,430/-. Notice under Section 143(2) was issued on 09.08.2018 and served to the assessee online. The assessee submitted its reply on 11.12.2019 it was taken into account by the Assessing Officer. The Assessing Officer made addition of Rs. 29,00,000/- in respect of cash deposits treating the same as unexplained money under Section 69A of the Act. 4. Being aggrieved by the assessment order the assessee filed appeal before the CIT(A). The CIT(A) dismiss the appeal of the assessee. 5. The Ld. A.R. submitted that since the assessee is an agriculturist the assessee could not receive the email notices of hearing before the CIT(A) and therefore, the CIT(A) without giving proper opportunity has passed ex-parte order. 6. The Ld. D.R. relied upon the assessment order and the order of the CIT(A). 7. Heard both the parties and perused all the relevant material available on record. It is pertinent to note that the CIT(A) has given only notices through ITA No. 355/Ahd/2022 Himmatbhai Madhubhai Patel vs. ITO Asst.Year–2017-18 - 3 - email but has not ensure that the same was served to the assessee or not. It will be appropriate to remand back this matter to the file of the CIT(A) for proper adjudication of the issues contested by the assessee therein on merit after giving opportunity of hearing to the assessee. Needless to say, the assessee be given opportunity of hearing by following principles of natural justice. 8. In result, the appeal of the assessee is partly allowed for statistical purpose. This Order pronounced in Open Court on 19/04/2023 Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad; Dated 19/04/2023 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation 13.04.2023 2. Date on which the type draft is placed before the Dictating Member 13.04.2023 3. Other Member..................... 4. Date on which the approved draft comes to the Sr.P.S./P.S .04.2023 5. Date on which the fair order is placed before the Dictating Member for pronouncement .04.2023 6. Date on which the fair order comes back to the Sr.P.S./P.S 19.04.2023 7. Date on which the file goes to the Bench Clerk 19.04.2023 8. Date on which the file goes to the Head Clerk.......................................... 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order..........................................