TUSHAR ENTERPRISES,BHOPAL V. ACIT(1), BHOPAL

ITA 531/IND/2024

AI Insights

This case involves Tushar Enterprises appealing against the order of the CIT(A), which confirmed the addition of Rs.5,48,00,000 under Section 69 of the Income Tax Act, 1961, due to unexplained source of unsecured loans given to M/s Laxmi Oil and Vanaspati Pvt. Ltd. The primary contention was the ex parte nature of the CIT(A)'s decision, as notices were allegedly sent to an incorrect email address, leading to non-representation of the assessee. The Tribunal found that the proper procedure for service of notice was not followed, specifically not adhering to the requirements of Section 282 and Rule 127 of the IT Rules, 1962, which led to the remand of the case back to the CIT(A).

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 31804 (ITAT-INDORE)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM KUMAR YADAV
• Assessee Lawyers: PANKAJ SHAH
• Keywords: Set aside; Opportunity of being heard
• Section: 250; 69

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SH. BAGIRATH MAL BIYANI, ACCOUNTANT MEMBER AND SH. UDAYAN DAS GUPTA, JUDICIAL MEMBER I.T.A. No.531/Ind/2024 Assessment Year: 2013-14 Tushar Enterprises, MF-23, Mansarovar Complex, Bhopal, M.P. [PAN:AAEFT6056B] (Appellant) Vs. ACIT-(1), Bhopal. (Respondent) Appellant by Sh. Pankaj Shah, AR Respondent by Sh. Ram Kumar Yadav, CIT. DR Date of Hearing 29.01.2025 Date of Pronouncement 17. 03.2025 ORDER Per: Udayan Das Gupta, JM This appeal is filed by the assessee against the order of the ld. CIT(A), NFAC, Delhi, passed u/s 250 of the Act 1961 dated 14.05.2024 which has emanated from the order of the DCIT/ACIT, 1(1), Bhopal, (in short the AO) u/s 143(3) r.w.s. 147 of the IT Act dated 18.12.2019 for A.Y. 2013-14. 2. The grounds of appeal preferred by the assessee as per memorandum of appeal are as under; I.T.A. No.531/Ind/2024 And ITA No.513/Ind/2024 2 “1. On the facts and circumstances of the case and in law the learned CIT(A) erred in sending notices on wrong email-id Let [e-mail] instead of [e-mail] stated in Form 35. The Appellant prays that the EXPARTE order of CIT(A) passed without serving the notices on correct email id be directed to-be quashed and set aside. 2. On the facts and. circumstances of the case and in law. the learned Commissioner of Income tax (Appeals) CIT(A) erred in exparte dismissing the appeal of the Assessee and thereby confirming the addition made by the Assessing Officer. The Appellant prays that the said order be set aside to the CIT(A) for hearing on merits. 3. On the facts and circumstances of the case and in law the learned CIT(A) erred in confirming the addition of Rs.5,48,00,000/- under Section 69 of the Act which is prayed to be deleted. 4. The Appellant craves leave to add to, alter and/or amend all any of the foregoing grounds of appeal.” 3. The facts are that the assessee has given unsecured loans to M/s Laxmi Oil and Vanaspati Pvt. Ltd. during the year under appeal amounting to Rs.5.48 crore, and the source of advancing the said loans has remained unexplained. The explanation of the assessee regarding the advancement of the said loan to have I.T.A. No.531/Ind/2024 And ITA No.513/Ind/2024 3 been made by a partner of the assessee firm which has been routed through the assessee firm, has not been accepted by the AO, and in absence of satisfactory reply the said amount was added back to the total income of the assessee u/s 69 of the Act. 4. The matter was carried in appeal before the first appellate authority and the ld. CIT(A), (NFAC) has dismissed the appeal for non-representation of the assessee in response to various notices issued on various dates of hearing, and in absence of any written submissions and documentary evidence to substantiate the case. 5. Now, the matter is in appeal before the Tribunal on the ground contained in Form No. 36. It is submitted by the ld. AR of the assessee that no opportunity of hearing has been allowed by the ld. CIT(A) and the order has been passed ex parte without service of notice on the assessee. He further submitted that not even a single notice of hearing has been issued in the e-mail ID provided in Form 35 where the e-mail ID mentioned is [e-mail]. 5.1 As such, he prays that the appeal may please be remanded back to the file of the ld. first appellate authority for providing proper opportunity of hearing and for deciding the issue contained in the grounds of appeal on merits of the case. I.T.A. No.531/Ind/2024 And ITA No.513/Ind/2024 4 6. The ld. DR relied on the order of the ld. CIT(A), but he could not confirm the submission of notice by e-mail as per Form 35. 7. We have heard the rival submissions and considered the materials on record and we find from the appellate order that notices of hearing has been issued on six separate occasions, but it is not clear from the appellate order as to whether any of the notices has been issued in the e-mail ID provided in the Form 35, [e-mail]. 7.1 We further refer to section 282 of the Act where the procedure of service of notice has been laid down and, notice has to be served as per the requirement of the section of the section (read with Rule 127 of the IT Rules 1962) and to be authenticated as per provisions of section 282A of the Act, 1961. 7.2 In the instant case, we find that notice has not been served through e-mail as provided in form 35 and no such communication or message has been issued through any electronic mail message and provisions of section 282A regarding authentication of notice and other documents has also not been complied with. 7.3 As such, in the interest of justice, we remand the matter back to the file of the ld. CIT(A) for adjudicating on the ground of appeal as contained in Form 35 on merits of the case after allowing proper opportunity of being heard to the assessee (through e-mail ) and we also direct the assessee to furnish the written submissions I.T.A. No.531/Ind/2024 And ITA No.513/Ind/2024 5 and necessary documentary evidences for consideration of the same by the ld. CIT(A) in course of appellate proceedings. 8. In the result, the appeal of the assessee bearing ITA No. 531/Ind/2024 is allowed for statistical purposes. Order pronounced on 17.03.2025 under Rule 34(4) of the Income Tax Appellate Tribunal Rules 1963. Sd/- Sd/- (BAGIRATH MAL BIYANI) (UDAYAN DAS GUPTA) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order I.T.A. No.531/Ind/2024 And ITA No.513/Ind/2024 6 Date Initia l 1. Draft dictated on 11.03.25 Sr.PS/ PS 2. Draft placed before author 11.03.25 Sr.PS/ PS 3. Draft proposed & placed before the Second Member JM/A M 4. Draft discussed/approved by Second Member JM/A M 5. Approved Draft comes to the Sr. P.S./P.S. Sr.PS/ PS 6. Kept for pronouncement on Sr.PS/ PS 7. File sent to the Bench Clerk Sr.PS/ PS 8. Date on which file goes to the Head Clerk 9. Date on which file goes to the AR 10. Date of dispatch of Order "