SHIVAM TELE COMMUNICATION , SHOP NO. NEW GRAIN MARKET V. INCOME TAX OFFICER , ITO WARD ABOHAR

ITA 90/ASR/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1047 (ITAT-AMRITSAR)
• Duration Of Justice: 4 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-06-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 25-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Set aside
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (HYBRID COURT) BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DASGUPTA, JUDICIAL MEMBER I.T.A. No. 90/Asr/2024 Assessment Year: 2017-18 Shivam Tele Communication Shop No. 7, New Grain Market, Jalalabad (West),152024 [PAN: ABFFS 8133A] (Appellant) Vs. Income Tax Officer, Ward 2(4), Abohar (Respondent) Appellant by Respondent by : : Sh. Ashwani Kalia, CA Sh. Ravinder Mittal, Sr. DR Date of Hearing Date of Pronouncement : : 01.07.2024 09.07.2024 ORDER Per Dr. M. L. Meena, AM: The captioned appeal has been filed by the assessee against the order dated 16/12/2023 passed by the ld. National Faceless Appeal Centre Delhi [NFAC/CIT(A)] challenging therein rejection of appeal ex-parte qua 2 ITA No. 90/Asr/2024 Shivam Telecommunication v. ITO the assessee without service of notice in violation of principles of natural justice. 2. There was a delay of 2 days in filing the appeals before the Tribunal. The Ld. AR for the assessee submitted that the short delay in filing the appeal to ITAT was non-intentional and born out of a consequence of the late communication and engaging present counsel who filed the appeal. The Ld. DR has no objection to the short delay in filing the appeal and accordingly, the delay condoned, and appeal admitted. 3. At the time of hearing, the Ld. counsel submitted that the Id. CIT(A) had passed an ex parte order on the ground that the appellant did not respond to several notices issued u/s 250. He contended that actually the appellant neither received any notice u/s 250 nor the order u/s 250 passed by the CIT(A) as the Id. CIT(A) had sent the notices and order at the wrong email ID as against the email ID given by the appellant in Form No. 35. It is further submitted that in Form No.35 the email id given by the assessee for communication was as under:- “[e-mail]” 4. However on going through the IT portal of the assessee, it has been observed that the CIT(A) had sent the notices at the following email id : 3 ITA No. 90/Asr/2024 Shivam Telecommunication v. ITO “[e-mail]” 5. Thus, the Ld. AR contended that in the case of the assessee, all the notices of hearing during the course of appellate proceedings were issued by the Ld. CIT(A) on the wrong email ID i.e. [e-mail] as against the given correct email ID, in Form No.35 as [e-mail] consequently none of the notice issued by CIT(A) was received by the assessee or his counsel. The service of the notice by the CIT(A) being faulty being issue on wrong email ID which resulted in dismissal of the appeal of the assessee ex-parte without providing the assessee with a reasonable opportunity of being heard in view of principles of natural justice and hence, the ex-parte order framed by the CIT(A) is bad in law and deserves to be set aside with a prayer that the case of the assessee may kindly be restored to the file of the Worthy CIT(A) to be decided the matter de novo by assuring the assessee’s due cooperation during the appellate proceedings. 6. Per contra, the ld. DR has no objection to the request of the appellant assessee, in view of principles of natural justice. 7. Heard the rival contentions , perused the record, impugned order, written submission, and case laws cited before us. Admittedly, the notices 4 ITA No. 90/Asr/2024 Shivam Telecommunication v. ITO were issued by the ld. CIT(A) were issued at the wrong email address and could not be received by the assessee. It is seen that the Ld. CIT(A) has decided the appeal ex-parte on the ground that the assessee was given several opportunities vide issue of notices u/s 250 on 30.12.2020, 09.11.2023, 23.11.2023 and 27.11.2023 but he has not mentioned the fact regarding service of these notices on the appellant assessee and the DR failed to controvert the fact of issue of notices on wrong email ID i.e. [e-mail] as against the given correct email ID, in Form No.35 as [e-mail] during the proceeding. 8. From the above, it is apparently clear that during the course of appellate proceedings, the notices of hearing were sent by the Ld. CIT(A) only on the wrong email id and not on the email address of the assessee given in Form 35 of Memorandum of appeal. Thus, in the present case the assessee, the appellate order has been passed by the CIT(Å) without granting the assessee sufficient opportunity of being heard in view of principles of natural justice. 9. In our view, it is appropriate to accept the request of the assessee to set aside the matter to the file of CIT (A) to be decided de novo with the 5 ITA No. 90/Asr/2024 Shivam Telecommunication v. ITO appellants assurance to cooperate during the appellate proceedings before CIT(A) which would not cause any prejudice to the revenue. 10. From the impugned order, we find that the decision relied, do not apply to the specific facts of the present case, as the appellant was not served any notice, message or email prior to the rejection of the appeal. Meaning thereby that the rejection of the application is illegal, due to the lack of substantive evaluation; without properly serving the department's notices to the appellant and based solely on the alleged absence of necessary submissions by the appellant. 11. In our view, it is essential for the Ld. CIT(A) that before any action is taken, a communication of the notice must be in terms of the provisions as enumerated as per provisions of law. The provisions do not mention of communication to be “presumed” by placing notice on the e-portal. In this regard, reliance is being placed upon the judgment delivered by the Hon’ble HIGH COURT OF PUNJAB AND HARYANA in the case of Munjal BCU Centre of Innovation and Entrepreneurship v. Commissioner of Income-tax (Exemptions)[2024] 160 taxmann.com 629 (Punjab & Haryana) where it has been held that merely uploading of information about the date of hearing on the Income Tax Portal is not an effective service of notice as 6 ITA No. 90/Asr/2024 Shivam Telecommunication v. ITO per the provisions of Section 282 of the Income Tax Act. The relevant text of the judgments is being produced hereunder: - Method of communication of notice - Service of notice generally u/s 282(1) - as per assessee SCN was not sent on the petitioner’s email or otherwise and was only reflected on the e-portal of the Department - Notice initiating proceedings under Section 12A(1)(ac)(iii) - HELD THAT:- It is essential that before any action is taken, a communication of the notice must be in terms of the provisions as enumerated herein above. The provisions do not mention of communication to be “presumed” by placingnotice on the e-portal. A pragmatic view has to be adopted always in thesecircumstances. An individual or a Company is not expected to keep the e-portal ofthe Department open all the time so as to have knowledge of what the Department issupposed to be doing with regard to the submissions of forms etc..The principles ofnatural justice are inherent in the income tax provisions and the same are requiredto be necessarily followed. This Court is of the firm view that the petitioner has not been given sufficient opportunity to put up his pleas with regard to the proceedings under Section 12A(1)(ac)(iii) of the Act of 1961 and as he was not served with any notice. Therefore, he would be entitled to file his reply and the Department would of course be entitled to examine the same and pass a fresh order thereafter. Writ Petition is allowed, and the order is quashed and set aside.” 12. In the present case, in the absence of the assessee being aware of the notices issued by the Ld. CIT(A), the assessee cannot be faulted for not responding to the quires raised by the Ld. CIT(A) as if it was never conveyed to the assessee. Therefore, the action of the Ld. CIT(A) cannot be sustained. 7 ITA No. 90/Asr/2024 Shivam Telecommunication v. ITO 13. Accordingly, we set aside the impugned order and restore the mater back to the file of the Ld. CIT(A) with a direction to issue notices to the correct registered email ID of assessee and grant proper opportunity of being heard to the assessee before passing the order in accordance with law. 14. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 09.07.2024 Sd/- Sd/- (Udayan Dasgupta) (Dr. M. L. Meena) Judicial Member Accountant Member *doc* Copy of the order forwarded to: (1)The Appellant: (2) The Respondent: (3) The CIT concerned (4) The Sr. DR, I.T.A.T. True Copy By Order