Ram Singh through legal heir Ajay Singh Chauhan, Alwar V. ITO WD1(1), Alwar, Alwar

ITA 445/JPR/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5837 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 07-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Opportunity of being heard; Principle of natural justice; Set aside
• Section: 144; 250; 251; 246A

Judgement Text

।आयकर अपीलीय अिधकरण ”ए” Ɋायपीठ जयपुरमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHES “A” :: JAIPUR BEFORE DR.S.SEETHALAKSHMI, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.445/JPR/2024 िनधाᭅरण वषᭅ / Assessment Year : 2013-14 Ram Singh (through L/h. Ajay Singh Chauhan), 148, Dhani Baddal Ki Karauli, Tapukara, Tijari, Alwar, Rajasthan – 301707. PAN: DROPS3001M V s The Income Tax Officer, Ward-1(1), Alwar. Appellant / Assessee Respondent / Revenue Assessee by Shri Aditya on behalf of Aditya Vijay – AR Revenue by Shri A.S.Nehra – Addl.CIT(DR) Date of hearing 10/07/2024 Date of pronouncement 11/07/2024 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal filed by the assessee is against the order of ld.Commissioner of Income Tax(Appeals)[NFAC], passed under section 250 of the Income Tax Act, 1961 dated 09.02.2024 for the ITA No.445/JPR/2024 Ram Singh (through L/h Ajay Singh Chauhan) [A] 2 A.Y.2013-14. The assessee has raised the following grounds of appeal : “1. On the facts and in the circumstances of the case and in law, Id. CIT(A) erred in adjudicating the appeal, without providing adequate opportunity of being heard. It is therefore prayed that order passed by ld. CIT(A) is against the principles of natural justice and deserves to be held bad in law. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in not condoning the delay without appreciating the fact that the assessment order and demand notice was received by someone else and not by assessee. However, after receiving the demand notice and assessment order assessee immediately filed the appeal before CIT(A), thus assessee should not suffer on account of the default of some other person. 3. On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in not condoning the delay without appreciating the fact that the assessee was a senior citizen aged about 77 years old at the time of passing of assessment order. Further the assessee was also suffering from health ailments during the passing of assessment order which is evident from the medical record which will be supplied during the filing of paper book. 4. On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in not condoning the delay and deciding the appeal of the assessee by dismissing it on the ground of delay by ignoring the fact that the 30 days are counted from the date of service of order and not from the date of the order and further the Ld. CIT(A) in the impugned order has concealed the fact of delivery of assessment order to assessee. 5. On the facts and in the circumstances of the case, Ld. CIT(A) has erred in confirming the action of Ld. AO of passing the erroneous impugned order u/s 147.r.w.s. 144 of the Act without considering the fact that the same was passed without giving the proper opportunity to the assessee and on wrong allegations. ITA No.445/JPR/2024 Ram Singh (through L/h Ajay Singh Chauhan) [A] 3 6. On the facts and in the circumstances of the case, Ld. CIT(A) has erred in confirming the action of Ld. AO of passing the erroneous impugned order u/s 147.r.w.s. 144 of the Act by ignoring the fact the reasons to believe were not provided to the assessee that on what basis such impugned reopening was done. 7. On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in upholding the assessment order vide which the Assessing Officer has treated the entire sum of 65,27,171/- as income from undisclosed sources for the Assessment Year 2013-14 while completely ignoring the fact that for the relevant A.Y. there is no cash deposit such amount in the Punjab National Bank A/c maintained by the Assessee. The ld. CIT(A) has without giving any consideration to the merits of the case, dismissed the appeal of the assessee on ground of delay. 8. On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in upholding the assessment order vide which the Assessing Officer has treated the entire sum of 65,27,171/- as income from undisclosed sources for the Assessment Year 2013-14 while completely ignoring the fact that the Assessee had purchased an immovable property in the financial year 2011-12 relevant to A.Y. 2012-13 and does not pertain to the present proceedings as the same are relevant to A.Y. 2013-14. Therefore, the said addition made on the fact of alleged immovable property transaction by the assessee is wholly misplaced and incorrect. The Id. CIT(A) has without giving any consideration to the merits of the case, upheld the erroneous addition made by the Assessing Officer. 9. On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in upholding the assessment order vide which the Assessing Officer has treated the entire sum of 65,27,171/- as income from undisclosed sources for the Assessment Year 2013-14 while completely ignoring the fact that the proceedings initiated by the Assessing Officer are not maintainable qua the A.Y. 2013-14 since the immovable property transaction was made by the assessee in the Financial Year 2011-12 relevant to A.Y. 2012-13. The Id. CIT(A) has without giving any consideration to the merits of the case, upheld the erroneous addition made by the Assessing Officer. ITA No.445/JPR/2024 Ram Singh (through L/h Ajay Singh Chauhan) [A] 4 10. The appellant craves the right to add, delete or amend any of the grounds of appeal either before or at the time of hearing of appeal.” Submission of ld.Authorised Representative(ld.AR) : 2. The ld.Authorised Representative(ld.AR) for the Assessee submitted that assessee was a senior citized 75 years old and he was suffering from chronic illness of liver and kidney for a very long time. Eventually, due to chronic illness, passed away on 13.05.2023. After the assessee’s death, the appeal was dismissed by the ld.CIT(A) vide order dated 09.02.2024. 2.1 And also, assessee’s appeal was dismissed by the ld.CIT(A) without discussing each and every ground and merits of the case and merely dismissed for Delay of 69 days only. Hence, ld.AR requested for one more opportunity of being heard to the assessee. 2.2 The ld.AR submitted that ld.CIT(A) has passed the order in the name of assessee Mr.Ram Singh on 09.02.2024, whereas ITA No.445/JPR/2024 Ram Singh (through L/h Ajay Singh Chauhan) [A] 5 assessee passed away on 13.05.2023. Therefore, the order is bad in law. Submission of ld.Departmental Representative(ld.DR) : 3. The ld.DR for the Revenue relied on the order of Assessing Officer(AO) and ld.CIT(A)[NFAC]. Findings & Analysis : 4. We have heard both the parties and perused the records. 4.1 The ld.CIT(A) dismissed the appeal on the ground of Delay as Assessee has failed to give any reason for Delay. We have gone through the Assessee’s Death Certificate issued by the Registrar, Municipal Council, Rewari. It is clear from the record that Assessee died on 13.05.2023. On perusal of the reason cited by the ld.AR for the delay, we are of the considered opinion that there was a “valid reason” for the delay. Therefore, we direct the ld.CIT(A) to condone the delay. ITA No.445/JPR/2024 Ram Singh (through L/h Ajay Singh Chauhan) [A] 6 4.2 It is observed from the order of the ld.CIT(A)[NFAC] that the ld.CIT(A)[NFAC] did not decide the grounds of appeal on merit but merely dismissed the appeal of the assessee on the ground of Delay. The ld.CIT(A) has not adjudicated grounds raised by the assessee on merits. 4.3 The Hon’ble Bombay High Court has held in the case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF)(Bombay)/[2017] 297 CTR 614 (Bombay) as under : Quote, “8.From the aforesaid provisions, 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 support. Section 251(1)(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 clear that while considering the appeal, the CIT(A) would be ITA No.445/JPR/2024 Ram Singh (through L/h Ajay Singh Chauhan) [A] 7 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 CIT(A) is coterminous 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 clear from the Section 251(1)(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.” Unquote. ITA No.445/JPR/2024 Ram Singh (through L/h Ajay Singh Chauhan) [A] 8 5. Thus, the Hon’ble Bombay High Court has categorically held that ld.CIT(A) has to decide the appeal on merit and ld.CIT(A) does not have any power to dismiss appeal for non-prosecution. 6. The ld.CIT(A) has passed the order in the name of deceased Mr.Ram Singh i.e.Assessee, without bringing on record the Legal Heir. The ld.CIT(A) shall bring the Legal Heir on record as per Law. In view of the above, the order of the ld.CIT(A)[NFAC] is set-aside to ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall provide opportunity of hearing to the Legal Heir of the assessee. 7. Accordingly, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 11 th July, 2024. Sd/- Sd/- (DR.S.SEETHALAKSHMI) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER Tk;iqj@Jaipur / fnukad@Dated: 11/07/2024 / SGR* ITA No.445/JPR/2024 Ram Singh (through L/h Ajay Singh Chauhan) [A] 9 vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Mr.Ram Singh through L/h Ajay Singh Chouhan. 2. izR;FkhZ@ The Respondent- ITO, Ward-1(1), Alwar. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No.445/JPR/2024) vkns'kkuqlkj@ By order, / / TRUE COPY / / lgk;d iathdkj@Asst. Registrar