2022 (8) TMI 962 - AT - Income Tax

Denial of natural justice - CIT-A not granting the proper opportunity being heard before dismissing the appeal in merit - HELD THAT - As per the assessee, the documents now sought to be filed by way of additional evidence were not sought by the lower authorities and only in the remand proceedings, the Assessing Officer required the bank statements. It is submission of the assessee that before the compliance could have been made, the learned CIT(A) dismissed the appeal filed by the assessee. In view of the aforesaid submissions, additional evidences filed by the assessee are admitted. As is evident from the record, assessee filed detailed submission before the CIT(A), in respect of same, remand report from the AO was also sought. However, as per assessee, appropriate reply could not be filed by the assessee against the aforesaid remand report in time due to change in jurisdiction of the learned CIT(A) from Pune to Thane. In view of the above, we deem it appropriate to remand this issue to the file of learned CIT(A) for de novo adjudication after granting proper opportunity to the assessee of hearing and to file reply against the remand report of the AO. Appeal by the assessee is allowed for statistical purpose.

Summary

Issues:
Delay in filing appeal under section 250 of the Income Tax Act, 1961. Proper opportunity for hearing not granted by the Commissioner of Income Tax (Appeals). Consideration of undisclosed income by the Assessing Officer. Dismissal of appeal by the learned CIT(A) based on remand report. Admission of additional evidence by the Appellate Tribunal ITAT Mumbai.

Delay in filing appeal under section 250 of the Income Tax Act, 1961:
The Appellate Tribunal considered the delay of 248 days in filing the appeal challenging the impugned order dated 28/02/2020 under section 250 of the Income Tax Act, 1961. The Tribunal noted that the Hon'ble Supreme Court's order directed the exclusion of the period from 15/03/2020 till 28/02/2022 for limitation purposes in judicial proceedings. As the due date for filing the appeal fell within this period, the Tribunal found no delay in filing the appeal and proceeded to decide the case on merits.

Proper opportunity for hearing not granted by the Commissioner of Income Tax (Appeals):
The appellant raised grounds alleging that the learned CIT(A) erred in not granting a proper opportunity to be heard before dismissing the appeal on merit. The appellant also contended that the CIT(A) did not ask for an explanation on the remand report and did not consider all the papers submitted by the Assessing Officer along with the remand report. The Tribunal acknowledged the appellant's concerns and directed a de novo adjudication after granting proper opportunity for hearing and considering all submissions.

Consideration of undisclosed income by the Assessing Officer:
The Assessing Officer reopened the case under section 147 of the Act due to alleged non-disclosure of business receipts and TDS in the appellant's return of income for the assessment year 2009-10. The AO added the undisclosed income to the total income of the appellant based on the verification of 26AS, where certain receipts were not accounted for by the appellant. In response, the appellant argued that the receipts were already covered in disclosed hiring charges and were not suppressed or unaccounted for. The Tribunal remanded the issue back to the CIT(A) for reevaluation considering the additional evidence submitted by the appellant.

Dismissal of appeal by the learned CIT(A) based on remand report:
The CIT(A) dismissed the appeal filed by the appellant, citing discrepancies in the income computation and failure to substantiate receipts reflected in Form 26AS. The appellant's failure to provide bank statements for verification and reply to the remand report led to the dismissal of the appeal. The Tribunal allowed the appeal for statistical purposes and remanded the issue back to the CIT(A) for a fresh adjudication with proper opportunity for the appellant.

Admission of additional evidence by the Appellate Tribunal ITAT Mumbai:
During the hearing, the appellant sought to file bank statements as additional evidence, claiming they were not previously requested by the lower authorities. The Tribunal admitted the additional evidence and remanded the issue back to the CIT(A) for reevaluation, considering the new evidence and providing the appellant with a fair opportunity for hearing. The Tribunal allowed all grounds raised by the appellant for statistical purposes and allowed the appeal.