2022 (6) TMI 1069 - AT - Income Tax

Ex-parte order passed by CIT- A - Denial of natural justice - HELD THAT - CIT(A) affirmed the action of Assessing Officer ex parte without mentioning any reason for confirming the same on merits. The provisions of Section 250(6) of the Act require the Commissioner (Appeal) to dispose of the appeal in writing with reasoning. But we find from the impugned order of CIT(A), who confirmed the order of AO, that the appeal was dismissed without deciding the same on merit. The assessee appeared/co-operated before the AO and filed the necessary submission during the proceedings before him. Thus, the Ld. CIT-A should have called for the assessment records for considering the submission made by the assessee before the AO before upholding the order of the AO. But the Ld. CIT-A failed to do so. We further find that the principle of audi alteram partem is the basic concept of natural justice. The expression audi alteram partem implies that a person must be given an opportunity to defend himself. This principle is sine qua non of every civilized society. The assessee after filing the appeal should be vigilant enough for pursing it before the authorities but for this, if the assessee fails to pursue the appeal, the assessee cannot be penalized by confirming such huge addition without hearing his points of contentions. The mistake committed by the assessee and punishment given to him (the assessee) by sustaining the addition is not commensurate to each other in the given facts and circumstances. But the negligent/dilly-dally approach of the assessee before the Ld. CIT(A) cannot be neglected/ignored. Therefore, we are inclined to levy a cost of Rs. 5,000/- upon the assessee for adopting the negligent approach in the appeal proceedings before the Ld. CIT(A). Accordingly, we direct the assessee to deposit a sum of Rs. 5,000/- to the Income Tax Department prior to the commencement of hearing before the Ld. CIT(A). We are of the view that the assessee must be given one more opportunity of hearing to represent its case. Therefore, in exercise of power conferred under Rule 28 of Tribunal Rules, we restore this appeal to the file of Ld. CIT(A) for reconsideration all grounds of appeal after allowing proper opportunity of being heard in accordance with law. The assessee is aware of the case set up against him, accordingly it is directed to prepare his submission and cooperate in the appeal proceedings and its failure will entail confirmation of the impugned addition made by the AO. Hence, this ground of assessee's appeal stands allowed for statistical purpose.

Summary

Issues Involved:
1. Delay in filing the appeal.
2. Legality of the Income Tax Officer's (ITO) actions and jurisdiction.
3. Ex parte order by the Commissioner of Income Tax (Appeals) [CIT(A)].
4. Principles of natural justice and right to a fair hearing.

Detailed Analysis:

1. Delay in Filing the Appeal:
The primary issue was the delay of 389 days in filing the appeal by the assessee. The assessee claimed the delay was due to a communication gap with their counsel, believing the appeal had been filed when it had not. The Tribunal referenced various legal precedents, emphasizing a pragmatic approach to condonation of delay, particularly when substantial justice is at stake. The Tribunal concluded that "substantial justice deserves to be preferred rather than deciding the matter on the basis of technical defect," and thus condoned the delay, allowing the appeal to be heard on its merits.

2. Legality of the ITO's Actions and Jurisdiction:
The assessee raised multiple grounds questioning the legality and jurisdiction of the ITO's actions, including:
- Arbitrary issuance of summons and violation of procedural laws.
- Conducting inquiries and investigations without jurisdiction.
- Passing judicial orders without pre-assessment orders.
- Arbitrary disallowance of expenses and additions to income based on assumptions and without cogent documents.
- Initiating penalty proceedings and charging interest without proper basis.

The Tribunal did not specifically address each of these grounds in detail within this order but noted that these issues would need to be reconsidered by the CIT(A) upon remand.

3. Ex Parte Order by CIT(A):
The Tribunal noted that the CIT(A) had issued an ex parte order due to the non-appearance of the assessee despite multiple notices. The Tribunal emphasized that the CIT(A) should have provided reasons for confirming the Assessing Officer's (AO) order on merits, as required by Section 250(6) of the Income Tax Act. The Tribunal found that the CIT(A) failed to consider the submissions made by the assessee before the AO and did not call for the assessment records.

4. Principles of Natural Justice and Right to a Fair Hearing:
The Tribunal highlighted the principle of "audi alteram partem," which mandates that a person must be given an opportunity to defend themselves. The Tribunal criticized the CIT(A) for confirming significant additions without hearing the assessee's contentions, deeming the punishment disproportionate to the assessee's negligence in pursuing the appeal. The Tribunal decided to provide the assessee another opportunity to present their case, subject to the payment of a cost of Rs. 5,000 for their negligent approach.

Conclusion:
The Tribunal restored the appeal to the file of the CIT(A) for reconsideration of all grounds of appeal after allowing the assessee a proper opportunity to be heard. The assessee was directed to prepare their submission and cooperate in the appeal proceedings, with a warning that failure to do so would result in the confirmation of the impugned additions made by the AO. The appeal was thus allowed for statistical purposes, and the order was pronounced on 15/06/2022 at Ahmedabad.