POOJA NIHICHLANI, DHAMTARI,DHAMTARI V. .INCOME TAX OFFICER, WARD DHAMTARI, DHAMTARI

ITA 476/RPR/2024

AI Insights

The case involves Pooja Nihichlani, the appellant, who contested an order from the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center, Delhi, which arose from a decision by the Centralized Processing Centre (CPC)/A.O under Sec.154 of the Income-tax Act, 1961. The dispute centered on the addition of Rs.20,12,966 as Long Term Capital Gain (LTCG) on shares and land, which the appellant argued was a double addition, as the amount had already been declared in the Return of Income (ROI). The CPC initially declined the appellant's claim for set off of business loss against LTCG, leading to a revised income assessment. The CIT(Appeals) dismissed the appeal due to the appellant's non-participation, which the appellant attributed to not receiving proper notice of the hearing dates. The Tribunal found merit in the appellant's claim of not being properly notified and thus restored the case to the CIT(Appeals) for a fresh hearing.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 469790 (ITAT-RAIPUR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-12-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2022-2023
• Other Referred Cases: B.N. Bhattacharjee and another (118 ITR 461), M/s Chemipol vs. Union of India in Excise Appeal No. 62 of 2009, Sunderlal Mannalal Vs. Nandramdas Dwarakadas AIR 1958 MP 260
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA PATEL
• Assessee Lawyers: SUNIL KUMAR AGRAWAL
• Keywords: Opportunity of being heard; Onus to prove; Principle of natural justice
• Section: 154

Judgement Text

"आयकर अपीलȣय अͬधकरण Ûयायपीठ रायपुर मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.476/RPR/2024 Ǔनधा[रण वष[ / Assessment Year : 2022-23 Pooja Nihichlani D C H Complex, in front of New Bus Stand, Dhamtari (C.G.)-493 773 PAN : AVOPN9261F .......अपीलाथȸ / Appellant बनाम / V/s. The Income Tax Officer Ward-Dhamtari ……Ĥ×यथȸ / Respondent Assessee by : Shri Sunil Kumar Agrawal, CA Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 16.12.2024 घोषणा कȧ तारȣख / Date of Pronouncement : 19.12.2024 2 Pooja Nihichlani Vs. ITO, Ward-Dhamtari ITA No. 478/RPR/2024 आदेश / ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 27.08.2024, which in turn arises from the order passed by the Centralized Processing Centre (CPC)/A.O under Sec.154 of the Income-tax Act, 1961 (in short ‘the Act’) dated 02.01.2024 for the assessment year 2022-23. The assessee has assailed the impugned order on the following grounds of appeal before us: “1. On the facts and circumstances of the case and in law, the Learned CIT(A). CIT(A) has erred in sustaining addition of Rs.20,12,966 on the count of LTCG on shares and land which is tantamount to double addition made by the A.O on the same amount which had already been shown in the ROI filed; addition is unjustified and unjustified and is liable to be deleted. 2. The appellant craves leave, to add, alter, modify or withdraw any grounds before or at the time of hearing.” 2. Succinctly stated, the assessee had filed her return of income for A.Y. 2022-23 on 05.11.2022 declaring an income of Rs.29,24,630/-. The return of income filed by the assessee was processed by the CPC. Bengaluru u/s. 143(1) of the Act, dated 07.08.2023, wherein the assessee’s claim for set off of business loss of Rs.20,12,966/- against the Long Term Capital Gain (LTCG) was declined. Accordingly, the A.O./CPC vide its order passed u/s. 3 Pooja Nihichlani Vs. ITO, Ward-Dhamtari ITA No. 478/RPR/2024 143(1) of the Act, dated 07.08.2023 determined the income of the assessee at Rs.49,37,600/-. 3. Aggrieved, the assessee filed an application on 20.11.2023 u/s. 154 of the Act with the A.O./CPC, Bengaluru seeking rectification of a mistake which was claimed to have its genesis in the declining of her claim for set- off of business loss against LTCG which, however, was rejected by the A.O vide his order dated 02.01.2024. 4. Aggrieved, the assessee carried the matter in appeal before the CIT(Appeals). As the assessee despite having been afforded three opportunities failed to participate in the proceedings before the CIT(Appeals), therefore, the latter holding a firm conviction that the assessee was not interested in pursuing the matter, thus, approved the view taken by the A.O and dismissed the appeal. For the sake of clarity, the observation of the CIT(Appeals) are culled out as under: “4. Decision: 4.1 The appeal was filed by the assessee on 30.01.2024 against order u/s 154 of the Act dated 02.01.2024 for the AY: 2022-23. In connection to the appeal, opportunities were provided to the appellant to substantiate his grounds of appeal on or before the following dates: 1) 12.08.2024 2) 20.08.2024 3) 26.08.2024 On verification of the ITBA portal, it is observed that all the notices got successfully delivered to email: [e-mail]. 4 Pooja Nihichlani Vs. ITO, Ward-Dhamtari ITA No. 478/RPR/2024 Against all these notices, appellant is not interested in filing any details during the appellate proceedings and avail the opportunity under the principle of natural justice. In response to the notices issued, even adjournment was not sought. In such situation, the only conclusion which can be drawn is that the appellant is not interested in pursuing the appeal. 4.2 It has been held by the Hon'ble Supreme Court in the case of B.N. Bhattacharjee and another (118 ITR 461) that appeal does not mean merely filing of memo of appeal but also pursuing it effectively. In cases where the appellant does not want to pursue the appeal, appellate authorities have inherent power to dismiss the appeal for non- prosecution as held by the Hon'ble Bombay High Court in the case of M/s Chemipol vs. Union of India in Excise Appeal No. 62 of 2009. While deciding the issue, the Hon'ble High Court of Bombay has referred to the observations of Hidayatullah, Chief Justice (as His Lordship then was) in Sunderlal Mannalal Vs. Nandramdas Dwarakadas AIR 1958 MP 260 wherein it was observed: \"Now the Act does not give any power of dismissal. But it is axiomatic that no court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain present. The dismissal, therefore, is an inherent power which every tribunal possesses….. 4.3 This appeal has been filed by the appellant with a prayer to this office that the additions made by the AO be deleted. In such situation, it is for the appellant to furnish submissions with relevant evidence(s), case laws, if any, to support the claim. The burden of proof is always on the person who has made the claim by filing the appeal. Further, if the appellant claims that the addition made should be deleted, the burden is on the appellant to prove it why it should be deleted. Same is the position in case of all allowances, deduction, exemptions, claims or loss etc. Since an appeal is nothing but the claim of the appellant that he has been unduly unjustifiably taxed or levied fee/interest, it is for the appellant to prove its case. The appellant has not availed any opportunity to do so. From the conduct of the appellant as per the facts noted above, it is clear that the appellant does not wish to pursue the appeal. Even otherwise on the merits of it also, I do not see any reason to differ with the findings of the AO since no attempt has been made by the assessee 5 Pooja Nihichlani Vs. ITO, Ward-Dhamtari ITA No. 478/RPR/2024 to discharge its onus. Hence, respectfully following the above mentioned judicial pronouncements and in view of the facts of the case, the appeal is hereby dismissed. 5. In the result, the appeal is DISMISSED.” 5. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 6. We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower of the authorities and the material available on record. 7. Shri Sunil Kumar Agrawal, Ld. Authorized Representative (for short ‘AR') for the assessee, at the threshold, submitted that as the assessee was on neither of the three occasions validly put to notice about the fixation of hearing of the appeal i.e. on 12.08.2024, 20.08.2024 and 26.08.2024, therefore, it was for the said reason that she had failed to participate and defend her case before the first appellate authority. Elaborating on his contention, the Ld.AR submitted that though the assessee in the memorandum of appeal i.e in “Form 35” had provided the email id [e-mail] for dropping the notices /communications by the office of the CIT(Appeals), but no such notice intimating the fixation of hearing of the appeal was ever received by her in the said email account. Carrying his contention further, the Ld.AR submitted that the CIT(Appeals) in his order had observed that all the 6 Pooja Nihichlani Vs. ITO, Ward-Dhamtari ITA No. 478/RPR/2024 notices/communications were delivered to email id. i.e. [e-mail]. The Ld. AR had taken us through the observations of the CIT(Appeals) at Page 4.1 of his order. The Ld.AR submitted that as the assessee for no fault on her part had remained divested of an opportunity to participate in the proceedings before the first appellate authority and thus, had suffered dismissal of the appeal vide an ex-parte order, therefore, the matter in all fairness be restored to his file with a direction to re-adjudicate the same after affording a reasonable opportunity of being heard to the assessee. 8. Dr. Priyanka Patel, Ld. Sr. Departmental Representative (for short ‘DR’) relied on the orders of the lower authorities. 9. We have thoughtfully considered the contentions advanced by the Ld. Authorized Representatives of both the parties. Admittedly, it is a matter of fact borne from record that the CIT(Appeals) office on all the three occasions had dropped/communicated the notices intimating the fixation of hearing of the appeal i.e. on on 12.08.2024, 20.08.2024 and 26.08.2024 in the e- mail account, viz. [e-mail]. As stated by the Ld.AR, and rightly so, though the assessee had for the purpose of dropping of the notices/communications by the office of the CIT(Appeals) provided in “Form 35” his email account i.e. [e-mail] but we find that the CIT(Appeals) had never validly put to notice about the fixation of hearing 7 Pooja Nihichlani Vs. ITO, Ward-Dhamtari ITA No. 478/RPR/2024 of the appeal by dropping the notices/communications in the said email account. We, thus, in the backdrop of the aforesaid facts concur with the ld. AR that the assessee had for no fault on her part remained divested of an opportunity to participate in the proceedings before the first appellate authority. Accordingly, in terms of our aforesaid observations, we restore the matter to the file of the CIT(Appeals) with a direction to re-adjudicate the same. Needless to say, the CIT(Appeals) shall in the course of the set-aside proceedings afford a reasonable opportunity of being heard to the assessee who shall remain at a liberty to substantiate her claim on the basis of fresh documentary evidence, if any. 10. In the result, appeal of the assessee is allowed for statistical purposes in terms of our aforesaid observations. Order pronounced in open court on 19th day of December, 2024. Sd/- Sd/- ARUN KHODPIA RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायपुर/ RAIPUR ; Ǒदनांक / Dated : 19th December, 2024. **SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G.) 4. The Pr. CIT, Raipur-1 (C.G) 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, रायपुर बɅच, 8 Pooja Nihichlani Vs. ITO, Ward-Dhamtari ITA No. 478/RPR/2024 रायपुर / DR, ITAT, Raipur Bench, Raipur. 6. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur. "