NAZMA SALIM DANGASIYA, RAJKOT V. THE INCOME TAX OFFICER-WARD 2(1)(1), RAJKOT

ITA 395/RJT/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5986 (ITAT-RAJKOT)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-07-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 17-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice
• Section: 147; 148; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./ITA No.395/RJT/2023 (Assessment Year: 2015-16) (Hybrid Hearing) Nazma Salim Dangasiya, Hawa Place-9, Subhashnagar, Raiya Road, Gujarat-360001 Vs. ITO, Ward-2(1)(1), Rajkot थायीलेखासं./जीआइआरसं./PAN/GIR No.: AUNPK0981D (अपीलाथ /Appellant) ( यथ /Respondent) नधा रतीक ओरसे / Assessee by : Shri Samir Bhuptani, A.R. राज वक ओरसे/Revenue by : Shri K. L. Solanki, Sr. DR स ु नवाईक तार ख/ Date of Hearing : 04/07/2024 घोषणाक तार ख/Date of Pronouncement : 05/07/2024 आदेश/ORDER PER ARJUN LAL SAINI, AM: The captioned appeal filed by the assessee, pertaining to Assessment Year 2015-16, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Center (in short “NFAC”), Delhi, vide order dated 27.10.2023, which in turn arises out of an assessment order passed by the assessing officer (AO) under Section 147 r.w.s. 144/144B of the Income Tax Act, 1961 (hereinafter referred to “as the Act”) vide order dated 19.10.2022. 2. The grounds of appeal raised by the assessee are as follows: I.T.A No.395/Rjt/2023 A.Y. 2015-16 Nazma Salim Dangasiya vs. ITO 2 “1. Ld. CIT(A) erred in law as well as on facts in passing appellate order u/s. 250 of the Income Tax Act, 1961, which is bad in law and in breach of principles of natural justice. 2. Ld. CIT(A) erred in law as well as on facts in not granting reasonable opportunity of being heard. 3. Ld. CITT(A) erred in law as well as on facts in passing ex-parte appellate order without passing any comment on merit of the case and without conducting any inquiry with the AO about the past assessment history. 4. Ld. AO and CIT(A) erred in law as well as on facts in passing/ upholding order u/s. 148A(d) and consequently reopening the assessment by issuing notice u/s. 148 of the Act. 5. Ld. AO and CIT(A) erred in law as well as on facts in not considering the return of income filed by the appellant on the ground that the same was not e-verified by the appellant. 6. Ld. AO and CIT(A) erred in law as well as on facts in ignoring the past assessment history for the A.Y. 2011-12 and 2012-13 on the similar facts and circumstances. 7. Ld. AO and CIT(A) erred in law as well as on facts in making addition of Rs. 6,26,852/- on account of arbitrary estimation of profit on the turnover and that too without rejecting books of account. 8. Ld. AO and CIT(A) erred in law as well as on facts in making addition of Rs. 1,34,03,330/- on account of alleged unexplained deposits in bank account. 9. Ld. AO and CIT(A) erred in law as well as on facts in not restricting the addition upto profit element embedded in the turnover or peak investment in the bank account. 10. Ld. AO and CIT(A) erred in law as well as on facts in arbitrary not giving credit of the cash withdrawal made from the very same bank account.” 3. At the outset, Ld. Counsel for the assessee submitted that order passed by the Ld. CIT(A) is not on merit. The Ld. CIT(A) without considering the material available in assessment folder, has just dismissed the appeal of the assessee, on account of non-prosecution, which is not justifiable. Therefore, the assessee may be granted one more opportunity to present his case before the Ld. CIT(A). The I.T.A No.395/Rjt/2023 A.Y. 2015-16 Nazma Salim Dangasiya vs. ITO 3 Ld. Counsel also stated, that although during the appellate proceedings, three notices of hearing were issued by the Ld. CIT(A), however, these notices were delivered on the email id of the A.R. of the assessee, who did not inform the assessee about notices of hearing, therefore, the assessee could not appear before the Ld. CIT(A), and as a result the Ld. CIT(A) dismissed the appeal of the assessee. Hence, Ld. Counsel contended that the matter may be remitted back to the file of the Ld. CIT(A) for fresh adjudication. 4. On the other hand, Ld. D.R. for the Revenue oppose the prayer of the assessee and stated that despite of giving three notices of hearings, the assessee could not appear before the Ld. CIT(A), and did not file the documents and details, therefore, assessee’s appeal may be dismissed. 5. We have heard both the parties and perused the relevant material available on record. We note that during the appellate proceedings, the Ld. CIT(A) has issued three notices of hearing. However, these notices of hearing were delivered to the A.R. of the assessee, who did not inform the assessee and as a result the assessee could not appear before the Ld. CIT(A). We note that the assessee should not be penalized on account of mistake committed by the A.R. of the assessee. Besides we also find that the order passed by the Ld. CIT(A) is an ex-parte order and there is no finding on merit in respect of the grounds raised by the assessee. The assessee has raised during the appellate proceedings nine grounds of appeal, however, we find that there is no adjudication, ground-wise, by the Ld. CIT(A), on merit. We also find that the order passed by the Ld. CIT(A) is not as per mandate of the provisions of Section 250(6) of the Income Tax Act, 1961, i.e. Ld. CIT(A) did not pass the order based on the material available on record, hence, it is against the principle of natural justice. I.T.A No.395/Rjt/2023 A.Y. 2015-16 Nazma Salim Dangasiya vs. ITO 4 6. Considering the above facts, we are of the view that one more opportunity should be granted to the assessee to plead his case before the Assessing Officer. Since the assessee has submitted part detail before the Assessing Officer. Therefore, some details and documents are yet to be furnished before the Assessing Officer. Hence, we are of the view that the matter should be remitted back to the file of the Assessing Officer for examination of additional documents and evidences, which remains to be submitted, on the part of the assessee, before the lower authorities. Therefore, considering these facts and circumstances, we set-aside the order of Ld. CIT(A) and remit the lis back to the file of the Assessing Officer for de-novo adjudication. The assessee is also directed to co- operate in the proceedings before the Assessing Officer and file the required documents and details, as and when required by the Assessing Officer. For statistical purposes, the appeal filed by the assessee is treated to be allowed. 7. In the result, appeal filed by the assessee allowed for statistical purposes. Order pronounced in the open court on 05-07-2024 Sd/- Sd/- (DINESH MOHAN SINHA) (A. L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Rajkot Dated: 05/07/2024 TRUE COPY आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Rajkot 6. Guard file. By order/आदेश से, Assistant Registrar/Sr. P.S./P.S. ITAT, Rajkot