2021 (10) TMI 682 - AT - Income Tax

Reopening of assessment u/s 147 - undisclosed sale of immovable property - Non appearance of assessee before AO - assessee submitted additional evidences as ignored - denial of natural justice - HELD THAT - Since the assessee could not appear before the A.O. as the notice could not be served upon the assessee as the assessee had already charged the old address therefore in absence of the assessee the matter was decided by the A.O - in order to put forth all his defence the assessee had filed an application before the erstwhile CIT(A) under Rule 46A of the Income Tax Rules 1962 for leading additional evidence and in this respect had placed on record bunch of documents. CIT(A) had not touched or considered the facts of documents placed on record and relied upon by the assessee but had dismissed the appeal filed by the assessee merely on the ground that the assessee had raised merely jurisdictional issue and no paper book or submissions have been filed by the assessee in respect of his claim on merits. After perusal of the record we found that the assessee had already filed the application for leading additional evidences submitted by other evidences as mentioned by the assessee in above para before the erstwhile CIT(A) on 26/6/2019 but all these documents escaped the attention of NFAC Delhi while deciding the appeal of the assessee because of that the rights of the assessee stand prejudiced. Considering the totality of facts and circumstances of the case and in the interest of principles of natural justice we restore the matter back to the A.O. with direction to decide the appeal afresh - Appeal of the assessee is allowed for statistical purposes only.

Issues Involved:
1. Delay in filing the appeal.
2. Validity of the assessment order under Section 147/144 of the Income Tax Act.
3. Jurisdictional challenge regarding the notice served.
4. Consideration of additional evidence by CIT(A).
5. Penalty levied under Section 271(1)(c) of the Income Tax Act.
6. Violation of the principles of natural justice.

Detailed Analysis:

1. Delay in Filing the Appeal:
The assessee filed the appeal with a delay of 48 days. The Tribunal considered the explanation provided by the assessee, which cited the lockdown due to the Covid-19 pandemic as the reason for the delay. The Tribunal referenced the Hon’ble Supreme Court's decisions in the cases of *Collector, Land Acquisition vs. Mst. Katiji* and *N. Balakrishnan vs. M. Krishnamurthy*, emphasizing that substantial justice should be preferred over technical considerations. The Tribunal found no malafide intent or culpable negligence by the assessee and condoned the delay, admitting the appeal for adjudication on merits.

2. Validity of the Assessment Order under Section 147/144:
The assessee did not file a return of income for the year under consideration and sold immovable property worth ?8.75 lakhs without disclosing his PAN. The Assessing Officer (A.O.) reopened the case under Section 147 and passed an ex parte assessment order under Section 144 due to non-compliance by the assessee. The Tribunal noted that the A.O. acted upon receiving information about the property sale and the assessee's non-disclosure, justifying the reopening of the case.

3. Jurisdictional Challenge Regarding the Notice Served:
The assessee challenged the jurisdiction of the A.O., claiming the notice was not served at the correct address. The CIT(A) dismissed the appeal, stating that the notice was issued to the last known address. The Tribunal observed that the assessee had changed addresses and did not receive the notice, leading to the ex parte assessment. The Tribunal found merit in the assessee's claim and restored the matter to the A.O. for fresh adjudication, ensuring proper service of notice.

4. Consideration of Additional Evidence by CIT(A):
The assessee submitted additional evidence under Rule 46A, which included various documents such as purchase and sale deeds, bank statements, affidavits, and computation of income. The CIT(A) dismissed the appeal without considering these documents, focusing solely on the jurisdictional issue. The Tribunal highlighted the importance of these documents and directed the A.O. to consider them while deciding the appeal afresh, ensuring a fair assessment.

5. Penalty Levied under Section 271(1)(c):
The assessee challenged the penalty levied under Section 271(1)(c) for concealment of income. Since the quantum appeal was restored to the A.O. for fresh adjudication, the Tribunal also restored the penalty appeal to the A.O. for reconsideration based on the outcome of the reassessment.

6. Violation of the Principles of Natural Justice:
The assessee argued that the CIT(A) violated the principles of natural justice by not providing an opportunity to be heard and not considering the additional evidence. The Tribunal acknowledged this violation and restored the matter to the A.O. to ensure that the assessee is given a fair opportunity to present his case.

Conclusion:
The Tribunal allowed both appeals for statistical purposes, condoning the delay and directing the A.O. to reassess the case, considering all relevant documents and providing the assessee with a fair opportunity to be heard. The penalty appeal was also restored to the A.O. for fresh adjudication in light of the reassessment.

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