KISHAN ASSUDANI,BHOPAL V. ASSISTANT COMMISSIONER OF INCOME-TAX, 3(1), BHOPAL, BHOPAL

ITA 749/IND/2024

AI Insights

The case involves Kishan Assudani, the appellant, who contested the orders passed by the lower tax authorities regarding the assessment of his income for the Assessment Year 2017-18. The primary contention was the ex-parte nature of the orders and the procedural irregularities in the issuance of notices and the timing of the assessment order. The appellant argued that the additions made to his income were unjustified and not supported by proper evidence, while the revenue defended the additions based on the provisions of the Income Tax Act, particularly Section 40A(3). The Tribunal found merit in the appellant's arguments regarding the procedural lapses and set aside the orders, remanding the case for a fresh assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 775326 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-09-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 18-10-2024
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH PORWAL
• Assessee Lawyers: ARPIT GAUR
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Principle of natural justice
• Section: 143(3); 40A(3)

Judgement Text

" Page 1 of 10 आयकर अपीलीय अिधकरण, इंदौर Ɋायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI B.M. BIYANI, ACCOUNTANT MEMBER AND SHRI PARESH M JOSHI, JUDICIAL MEMBER ITA No.749/Ind/2024 (Assessment Year : 2017-18) Kishan Assudani, Prop. Kishan Assudani, Plot No.6, MainRoad, Gandhi Nagar, Bhopal (PAN:AEUPA8876Q) बनाम/ Vs. ACIT 3(1), Bhopal (Assessee/Appellant) (Revenue/Respondent) Assessee by Shri Arpit Gaur, AR Revenue by Shri Ashish Porwal, DR Date of Hearing 02.09.2025 Date of Pronouncement 10.09.2025 आदेश / O R D E R Per Paresh M Joshi, J.M: This is an appeal filed by the assessee Under Section 253 of the Income Tax Act, 1961 (hereinafter referred to as the “Act” for sake of brevity) before this Tribunal. The assessee is aggrieved by the order bearing Number ITBA/NFAC/S/250/2023- 24/1055488928(1) dated 28.08.2023 passed by the Ld. CIT(A) u/s 250 of the Act which is hereinafter referred to as the “Impugned order”. The relevant Assessment Year is 2017-18 Printed from counselvise.com Kishan Assudani ITA No.749/Ind/2024 - A.Y. 2017-18 Page 2 of 10 and the corresponding previous year period is from 01.04.2016 to 31.03.2017. 2. FACTUAL MATRIX 2.1 That as and by way of an assessment order the total income of the assessee exigible to tax was computed and assessed at Rs.3,97,91,650/-. The income shown as per the Return of Income was at Rs.1,73,84,280/-. An addition of Rs.2,04,73,401/- was made for violating the provision of Section 40A(3) as the assessee had made certain expenditure transactions above Rs.20,000/- in the cash. Another addition of Rs.14,71,770/- in the aggregate was made on account of cash transaction under heads “Wastages and breakage expenses” of (Rs.9,45,620/-) and packaging material expenses of (Rs.5,26,150/-). These additions were made as the expenses/expenditure transactions were made beyond the limit specified u/s 40A(3) of the Act. Yet another addition of sum of Rs.4,62,198/- (Restricted to 25% of Rs.18,48,794/-) was made as there were no supporting bills and the vouchers in support of the expenses/expenditure made. That the aforesaid assessment order was made u/s 143(3) of the Act, and that the Printed from counselvise.com Kishan Assudani ITA No.749/Ind/2024 - A.Y. 2017-18 Page 3 of 10 same bears No.ITBA/AST/S/143(3)/2019-20/1023119067(1) dated 26.12.2019 which is hereinafter referred to as the “impugned assessment order”. 2.2 That the assessee being aggrieved by the aforesaid “impugned assessment order” prefers the first appeal u/s 246A of the Act before the Ld. CIT(A) who by the “impugned order” has dismissed the 1st appeal of the assessee on the grounds and reasons stated therein. The core ground and reason for the dismissal of the 1st appeal was as under:- “7.0 In view of the discussion as above and facts of the case, it seems that the appellant has nothing to add in this matter, despite getting five (05) opportunities. The appellant has only filed an appeal in the form No.35. The appellant has not filed any written submission/document with respect to ground raised in form-35.In the given circumstances and paucity of any evidence supporting the appellant's ground of appeal, it is difficult to take a view on merits against the Assessment order passed by the AO. 7.1 Therefore, it is held that no interference is required to the impugned addition made by the AO. The grounds of appeals are therefore dismissed and the Assessment order is upheld. 8.0 In the result, for statistical purpose, appeal of the appellant is Dismissed”. 2.3 That the assessee being aggrieved by the “impugned order” has preferred the instant second appeal before this Tribunal Printed from counselvise.com Kishan Assudani ITA No.749/Ind/2024 - A.Y. 2017-18 Page 4 of 10 and has raised following grounds of appeal in the Form No.36 against the “impugned order” which are as under:- “1. That, the learned CIT(A) grossly erred, both on facts and in law, in passing the ex-parte order without giving proper and effective opportunity of being heard to the appellant. 2. That, without prejudice to the above, the learned CIT(A) grossly erred in not adjudicating the appeal on merits of the case. 3. That, without prejudice to the above, the learned CIT(A) grossly erred, both on facts and in law, in confirming the action of the AO for determining the income of the appellant at Rs.3,97,91,650/- for the relevant assessment year as against the returned income of Rs.1,73,84,280/- thereby making additions of Rs.2,24,07,370/- by framing an Assessment Order under s.143(3) of the Income-Tax Act, 1961, which is quite unjustified, unwarranted, arbitrary, bad-in-law and void-ab-initio. 4. That, without prejudice to the above, the learned CIT(A) grossly erred, both on facts and in law, in upholding the addition of Rs.2,04,73,401/-made by the AO on account of disallowance out of purchases by invoking the provisions of s.40A(3) of the Act without properly considering and appreciating that the payments were made to the Government Agent covered under Rule 6DD(b) of the Income-Tax Rules, 1962 and as also, without properly considering and appreciating the written submissions of the appellant made along with supporting documentary evidences. 5. That, without prejudice to the above, the learned CIT(A) grossly erred, both on facts and in law, in upholding the addition of Rs.14,71,770/- made by the AO on account of disallowance of entire expenses under the head Wastage & Breakage at Rs.9,45,620/- and Packing Material at Rs.5,26,150/- , by invoking the provisions of section 40A(3) of the Act without pin-pointing any single instance of cash payment above Rs.20,000/- in a single day to a single person and without properly appreciating the actual facts and circumstances of the case. 6. That, without prejudice to the above, the learned CIT(A) grossly erred, both on facts and in law, in upholding the addition of Rs.4,62,198/- made by the AO on account of ad-hoc Printed from counselvise.com Kishan Assudani ITA No.749/Ind/2024 - A.Y. 2017-18 Page 5 of 10 disallowance at the rate of 25% out of expenses under various heads as claimed by the appellant in his audited profit & loss account, merely on guess work, conjectures and surmises, without considering and appreciating the material fact that all the expenses claimed by the appellant were genuine, fully vouched and were incurred wholly and exclusively for the purpose of business only and therefore the same were allowable under the provisions of s.37(1) of the Act. 7. That, the appellant further craves leave to add, alter or amend the foregoing ground of appeal as and when considered necessary”. 3. Record of Hearing 3.1 The hearing in the matter took place before this Tribunal on 02.09.2025 when the Ld. AR for and on behalf of the assessee appeared before us and stated that the registry has pointed out the delay of 357 days in preferring the instant second appeal. That Ld. AR has placed on record of this Tribunal a condonation of delay application which reads as under:- “1.That, an Order under s. 250 of the Income-Tax Act, 1961 was passed in the case of the appellant, ex-parte, on 28-08-2023, by the learned Commissioner of Income-Tax (Appeals), National Faceless Appeal Centre, Delhi, pertaining to A.Y. 2017-18. 2. That, the notices so issued by the Id. CIT(A) during the course of the appellate proceedings could not come to the specific knowledge of the appellant for the very reason that as per the table prepared by the Id. CIT(A) at page no. 6 of the email id impugned Order, all the notices were issued [e-mail]' which was neither informed by the appellant at the time of filing appeal before the Id. CIT(A) nor the same was accessed by the appellant. As a result, the appellant could not get aware of any of issuance of the notices or the Order so passed by the Id. CIT(A). It is only when the counsel of the appellant logged into the account of the appellant over the Printed from counselvise.com Kishan Assudani ITA No.749/Ind/2024 - A.Y. 2017-18 Page 6 of 10 Income-Tax Portal for attending the pending income-tax litigation, he found that the Order u/s. 250 has already been passed by the Id. CIT(A) for the A.Y. 2017-18, as early as 28-08- 2023. 3. That, the counsel then downloaded a copy of the Order from the account of the appellant at Income-Tax Portal and immediately thereafter, the appellant has proceeded for filing the appeal before this Hon'ble Bench without making any further delay. Although there has resulted a delay of 356 days in filing the appeal before this Hon'ble Bench but the same is absolutely unintentional and solely attributable to the unawareness of the appellant regarding issuance of the notices and passing of the Order by the Id. CIT(A). The appellant is prepared to file an affidavit affirming on oath, the facts contained in this application. In view of the above, it is most humbly prayed that considering the reasons stated hereinabove, in order to meet the ends of justice, the inadvertent delay so caused in filing the present appeal by the appellant may kindly be condoned and the appeal which is being filed separately may kindly be admitted and oblige”. The Ld. AR also placed on record of this Tribunal an affidavit dated 01.09.2025 in the support of condonation of delay application. In so far as prima facie case is concerned the Ld. AR showed to us during the course of the hearing a show cause notice dated 21.12.2019 issued by the Ld. A.O during the assessment proceedings and basis that demonstrated that the hearing was fixed for 06.01.2020 and that the assessee was called upon to file the reply by 23.12.2019 whereas the “impugned order” was passed on 26.12.2019 which was much prior to the date of hearing i.e. 06.01.2020 (supra). It was Printed from counselvise.com Kishan Assudani ITA No.749/Ind/2024 - A.Y. 2017-18 Page 7 of 10 therefore contended that besides the delay as aforesaid, the assessee has a strong case for breach of the principles of natural justice at the original assessment stage too. Per contra the Ld. DR has left the issue of delay to the wisdom of the Tribunal. After hearing the parties and after carefully perusing the condonation of delay application along with affidavit as presented to us we condone the delay of 357 days. The cause shown is sufficient, bonafide and reasonable. Accordingly, appeal is admitted and taken up for the hearing. 3.2 The Ld. AR besides agitating the breach of the principles of natural justice (supra) at the original assessment stage as aforesaid has also stated that the “impugned order” too is bad in law, illegal and not proper. It was stated that in the “impugned order” at internal page 6 a table is prepared by the Ld. CIT(A) that all the notices of hearing were sent to e-mail id at [e-mail] which was in fact never informed to the department at the time of filing of the first appeal before the Ld. CIT(A). In Form No.35 the e-mail id was rajkumartax14vat @gmail.com and so also at column No.17 which is a column for the address to which notice(s) may be sent to the assessee. It Printed from counselvise.com Kishan Assudani ITA No.749/Ind/2024 - A.Y. 2017-18 Page 8 of 10 was therefore urged and pleaded that neither any notice(s) for the hearing opportunities nor the “impugned order” came at the relevant e-mail address as was provided in the Form No.35. In brief the Ld. AR pleaded that both the “impugned assessment order” as well as the “impugned order” are ex-parte in nature and are in the violation of the principles of natural justice hence the “impugned order” should be set aside. Per contra Ld. DR appearing for the revenue stated that under the circumstances it would be just and fair that the “impugned order” be set aside and matter be remanded back to the file of Ld. A.O for denovo adjudication so that a fresh order could be passed, on merits. 4. Observations,findings & conclusions. 4.1 We now have to decide the legality, validity and the proprietery of the “impugned order” basis records of the case and rival contentions canvassed before us. 4.2 We have carefully perused the records of the case as presented to this Tribunal by both the Ld. AR & the Ld. DR to determine the legality, validity of the “impugned order” basis law and by following due process. Printed from counselvise.com Kishan Assudani ITA No.749/Ind/2024 - A.Y. 2017-18 Page 9 of 10 4.3 We basis records of the case and after hearing and upon examining the contentions canvassed before us by both the parties are of the considered view that both the “impugned assessment Order” and so also the “impugned order” are not meritorious in nature. Both the orders of the lower authorities are ex-parte and are not on merits. In so far as the “impugned assessment order” is concerned the same was passed before the scheduled date of the hearing as stated aforesaid whereas in respect of the “impugned order” no notice(s) of hearing ever came to the assessee as per e-mail id provided in the Form No.35. In the circumstances, we set aside the “impugned order” and remand the case back to Ld. A.O to pass a speaking order on merits. 5. Order 5.1 In the premises set out herein above, the “impugned order” is set aside as and by way of remand to Ld. A.O on denovo basis. Printed from counselvise.com Kishan Assudani ITA No.749/Ind/2024 - A.Y. 2017-18 Page 10 of 10 5.2 In result, appeal of the assessed is allowed for statistical purpose. Order pronounced in open court on 10.09.2025. Sd/- Sd/- (B.M. BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER Indore िदनांक / Dated :10.09.2025 Dev/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore Printed from counselvise.com "