2022 (9) TMI 656 - AT - Income Tax

Ex parte proceedings concluded by CIT-A - penalty levied u/s 271(1)(c) - unexplained cash credit in the bank account of assessee by taking a view that despite giving opportunity, the assessee has not offered any explanation about the nature and source - HELD THAT - We find that ld. CIT(A) despite recording clear finding that all the notices were returned unserved has not taken any step to serve the assessee by way of alternative modes as prescribed under Section 282 of the Act. CIT(A) has not adjudicated the grounds of appeal raised by assessee as per mandate of Section 250(6) of the Act. Section 250(6) mandates that order of ld. CIT(A) must contain facts of the case, points of determination and decision thereon and reasons of such decision. Considering the fact that ld. CIT(A) passed the ex parte order, in our view, the assessee was not offered sufficient and reasonable opportunity of hearing, therefore, the order of ld. CIT(A) is set aside and all the grounds of appeal raised by the assessee are restored back to the file of ld. CIT(A) to decide all the grounds of appeal afresh and in accordance with law. Needless to direct that before passing the order, the ld. CIT(A) shall grant reasonable opportunity of hearing to the assessee. Appeal of assessee is allowed for statistical purposes.

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Ex-parte order and non-receipt of notices.
3. Reopening of assessment under Section 147.
4. Addition of unexplained cash deposits.
5. Validity of penalty under Section 271(1)(c).

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The assessee filed the appeal on 16/12/2021 against the order dated 13/07/2018, resulting in a considerable delay. The assessee claimed that the order was received only on 17/11/2021 and filed an affidavit to condone the delay, citing technical reasons. The Tribunal found merit in the submission that the impugned order might not have been received by the assessee as all notices sent by the CIT(A) were returned unserved. Thus, the delay was condoned, prioritizing substantial justice over technicalities.

2. Ex-parte Order and Non-receipt of Notices:
The assessee contended that he did not receive any notices for the hearing of the appeal, leading to an ex-parte order by the CIT(A). The CIT(A) confirmed that notices sent via speed post were returned unserved. The Tribunal noted that the CIT(A) should have used alternative modes of service as prescribed under Section 282. The Tribunal found that the CIT(A) did not provide sufficient opportunity to the assessee and failed to adhere to the mandate of Section 250(6), which requires a detailed order with facts, points of determination, and reasons for the decision. Consequently, the Tribunal set aside the CIT(A)'s order and remanded the case for fresh adjudication, ensuring reasonable opportunity for the assessee.

3. Reopening of Assessment under Section 147:
The reopening was based on AIR information about cash deposits in the assessee's bank account. The Assessing Officer (AO) issued a notice under Section 148, which the assessee failed to respond to initially. The assessee later claimed that the deposits were from assisting people in sending remittances to Bihar. The AO did not accept this explanation, considering it vague and unsupported by evidence. The Tribunal did not directly address the reopening's validity but focused on the procedural lapses and remanded the case for a fresh hearing.

4. Addition of Unexplained Cash Deposits:
The AO added Rs. 37,00,286 as unexplained cash deposits in the assessee's bank account, rejecting the assessee's explanation. The CIT(A) upheld this addition in an ex-parte order. The Tribunal observed that the CIT(A) did not properly consider the assessee's explanations or provide a fair hearing. The Tribunal remanded the case to the CIT(A) for a fresh decision, ensuring that the assessee is given a fair opportunity to present evidence and explanations.

5. Validity of Penalty under Section 271(1)(c):
The penalty was levied by the AO based on the addition of unexplained cash deposits. The CIT(A) confirmed the penalty in an ex-parte order. Since the Tribunal set aside the quantum assessment order and remanded it for fresh adjudication, the penalty order was also remanded to the CIT(A) to be decided afresh post the quantum assessment decision.

Conclusion:
The Tribunal allowed both appeals for statistical purposes, remanding the cases to the CIT(A) for fresh adjudication. The CIT(A) was directed to provide a fair hearing and consider all relevant evidence, ensuring compliance with procedural requirements and substantial justice. The assessee was advised to be vigilant and responsive in future proceedings.

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