ROHIT SAXENA, JAIPUR V. INCOME TAX OFFICER 4(5), JAIPUR

ITA 566/JPR/2023

AI Insights

The case involves Rohit Saxena, the appellant, who contested the order of the National Faceless Appeal Centre (NFAC), Delhi, which was based on an earlier order under section 144 r.w.s 147 of the Income Tax Act by the ITO, Ward-4(5), Jaipur. The primary contention was the non-provision of adequate opportunity to be heard by the CIT(A), as notices were sent to an old email ID of the appellant's consultant. The Tribunal noted the appellant's serious intent to pursue the appeal, evidenced by submissions made to the CIT(A), which were not responded to by the AO. The Tribunal found merit in the appellant's arguments regarding the source of cash deposits in his bank account, which were claimed to be third-party insurance money, and directed the AO to reassess the matter after a proper hearing.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132279 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 01-09-2023
• Other Referred Cases: Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC), CIT vs. B.N. Bhattacharjee and Another, 118 ITR 461 (SC), Estate of Late Tukojirao Holkar vs. CWT, (1997) (223 ITR 480) (M.P.), CIT Vs. Multiplan India (P) Ltd. (1991) (38 ITD 320)
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAHUL SINHA
• Keywords: Opportunity of being heard
• Section: 148; 144

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh laanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 566/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2011-12 Rohit Saxena 134 Indira Colony, Bani Park, Jaipur cuke Vs. Income Tax Officer Ward- 4(5), Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AQGPS 1996 P vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Rahul Sinha (CA) jktLo dh vksj ls@ Revenue by : Sh. A. S. Nehra (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 18/10/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 09/11/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 12/09/2022 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2011-12 which in turn arise from the order dated 09.12.2018 passed under section 144 r.w.s 147 of the Income Tax Act, by ITO, Ward-4(5), Jaipur. 2 ITA No. 566/JP/2023 Rohit Saxena vs. ITO 2. At the outset of hearing, the Bench observed that there is delay of 295 days in filing the appeal by the assessee for which the ld. AR of the assessee submitted that notice were received in the mail id of the old consultant. The fact the assessee is serious in persuing the appeal is evident from the first para of the ld. CIT(A) order where in the submission filed by the assessee were sent to the ld. AO for remand report as the order was exparte. Even the ld. AO has not sent any report and the consultant has not responded to the notices. In support of the contention the assessee filed an affidavit stating these reasons for delay as well as non-compliance before the ld. CIT(A). Based on this prayer the ld. AR of the assessee prayed to condone the delay in bringing this appeal and also prayed to set aside the matter to the file of the ld. AO in the interest of justice. 3. On this issue during the hearing of the appeal the ld. DR objected to assessee’s application for condonation of delay stating that the serving of the notice at the registered email is sufficient. The assessee was given five opportunity to plead the merits of the case but the assessee did not complied any of the notices. Therefore, based on this argument the ld. DR relied on the orders of the lower authority. 3 ITA No. 566/JP/2023 Rohit Saxena vs. ITO 4. We have heard the contention of the parties and perused the materials available on record. The prayer by the assessee for condonation of delay of 295 days is that the assessee is serious in persuasion of the appeal and that is why his submission were placed on record of the ld. CIT(A) who has forwarded the same to the file of the ld. AO. The ld. AO did not file any submission on it and in the meanwhile five notices on the email id of the consultant were issued which remain noncompiled. Thus, based on these averments so made the bench feel that there were sufficient reasons to remain non complied before the ld. CIT(A) and filling this appeal belated. Therefore, we concur with the submission of the assessee. Thus the delay of 295 days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause and therefore, we admit this appeal. 5. In this appeal, the assessee has raised following grounds: - “1. Ground for appeal is that not giving opportunity of being heard gave by CIT appeal, no physical copy to us and intimation on old email id not which is mentioned on form 35.” 4 ITA No. 566/JP/2023 Rohit Saxena vs. ITO 6. Succinctly, the fact as culled out from the records is that the assessee is a resident individual and during the year the assessee has made cash deposits of Rs. 16,55,620/- in his bank accounts. The assessee has not filed his return of income for the A.Y 2011-12. Based on the information available on record, the case was re-opened by issuing notice u/s 148 dated 27.03.2018 after approval of the competent authority and the assessment was completed u/s. 144 of the Act assessing the income of the assessee at Rs. 18,19,021/-. The assessee contended that the cash deposited into the bank account is of the third party money deposited in his account with ICICI Bank. Same were deposited by the assessee for the insurance purpose which were also shown in the same days transaction in the ICICI bank account. As per bank statement and 26AS our was only Rs. 3,02,078/- and Rs. 2,15,067 loan amount which was taken from relatives and friends for the payment of housing loan and payment of credit card settlement. No other income to be chargeable to tax in the hands of the assessee. 7. Aggrieved from the order of the Assessing Officer, assessee preferred an appeal before the ld. CIT(A)/NFAC. A propose to the grounds 5 ITA No. 566/JP/2023 Rohit Saxena vs. ITO so raised the relevant finding of the ld. CIT(A)/NFAC is reiterated here in below: “4.1 In view of the above, it appears that the non-appearance to notices is deliberate as all the notices have been duly served upon the appellant on the till date It is reasonable to infer from the continued non-compliance that the appellant is not serious to pursue his appeal. 4.2 Hon'ble Supreme Court in the case of CIT vs. B.N. Bhattacharjee and Another, 118 ITR 461 (SC) observed that preferring an appeal means more than formally filing it but effectively prosecuting it. Hon'ble M.P. High Court in the case of Estate of Late Tukojirao Holkar vs. CWT, (1997) (223 ITR 480) (M.P.) dismissed the reference in default and for not taking necessary steps Similar view has been taken by I.T.A.T. Delhi Bench in the case of CIT Vs. Multiplan India (P) Ltd. (1991) (38 ITD 320). Considering the above, it appears that the appellant is not interested in prosecuting its appeal. Therefore, the appeal filed by the appellant is dismissed for non-prosecution. 5. In the result, the appeal is dismissed.” 8. As the assessee did not find any favour from the appeal so filed with the ld. CIT(A) the present appeal is filed with sole ground on the fact that the assessee was not provided sufficient opportunity of being heard the notices were not sent on the email id shown in the form no. 35. 9. Per contra, the ld. DR objected to the prayer of the assessee and heavily relied upon the finding of lower authority and prayed that the assessee has not complied to the five notices and his prayer to set aside the case does not require any merits. 6 ITA No. 566/JP/2023 Rohit Saxena vs. ITO 10. We have heard the rival contentions and perused the material placed on record. The bench noted that the assessee is a resident individual. Though the ld. DR objected to the prayer of the assessee but looking to the fact of the case that assessee being small person working privately as self employed. The cash deposited is on account of the insurance money of the party used to pay the premium and the same evident as debit from the bank account of the assessee. We find force in the arguments of the ld. AR of the assessee that if the arguments placed if tested and verified by the ld. AO then in that case the cash deposited of Rs. 16,55,620/- and credited amount in 26AS of Rs. 1,63,401/- on account of unexplained cash deposit during the year under consideration can be considered on its merits. Therefore, bench feels that the assessee should be heard on merit rather than to dismiss the appeal on the technical reasons. Considering that prayer of the assessee, we find force in the arguments advanced by the ld. AR of the assessee and considering the totality of the facts we consider deem fit to remand back the matter before the ld. AO to decide afresh on merit. Therefore, considering that contentions and ongoing through the orders of the lower authorities we are of the considered view that the assessing officer should hear the assessee’s submission on merits after affording proper opportunity of being heard and pass speaking order in the 7 ITA No. 566/JP/2023 Rohit Saxena vs. ITO matter in accordance with the law. At the same time assessee is directed to represent and present all the facts before the assessing officer and should not ask for the adjournment on frivols grounds. At this stage we remand back the issues raised without commenting upon the merits of the case and the ld. AO is directed to complete the assessment as per law. In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open court on 09/11/2023. Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 09/11/2023 *Ganesh Kumar, PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Rohit Saxena, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward- 4(5), Jaipur 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. 566/JP/2023) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar