2019 (1) TMI 1461 - AT - Income Tax

Reopening of assessment - no notice u/s 148 was served upon the assessee and even date of service of notice u/s 142 (1) of the Act on the assessee has not been mentioned by the AO - Held that - There is not an iota of material mentioned in the assessment order as to on which date notice u/s 148 of the Act was served upon the assessee and even date of service of notice u/s 142 (1) of the Act on the assessee has not been mentioned by the AO who has rather framed the assessment in haste. All these facts go to prove that adequate opportunity of being heard has not been provided to the assessee by the AO and the documents placed on file before the ld. CIT (A) have also not been examined by calling a remand report rather the ld. CIT (A) has dismissed the appeal on the basis of conjectures and surmises without going into the merits of the documents relied upon by the assessee. In these circumstances, we are of the considered view that to meet with the ends of justice, the assessee is required to be given adequate opportunity of being heard. - decided in favour of assessee for statistical purposes. Penalty proceedings u/s 271(1)(c) - failure of the assessee to appear and defend the penalty proceedings - Held that - Since the assessment order framed u/s 144/147 of the Act on the basis of which penalty proceedings were initiated has been set aside to the file of AO to decide afresh after providing an opportunity of being heard to the assessee, the penalty proceedings being consequential in nature are also liable to be set aside to the AO to decide accordingly after framing new assessment order. Consequently, the aforesaid appeal filed by the assessee is hereby allowed.

Issues:
1. Jurisdiction of Assessing Officer in passing order under section 147/144.
2. Service of notice under section 148 and 142(1) to the assessee.
3. Validity of assessment order under section 147/144.
4. Consideration of family structure and power of purse in assessment.
5. Addition of cash deposit in bank account.
6. Imposition of penalty under section 271(1)(c) for alleged concealment of income.
7. Opportunity of being heard and remand back to Assessing Officer.

Issue 1: Jurisdiction of Assessing Officer
The appellant challenged the jurisdiction of the Assessing Officer (AO) in passing orders under sections 147/144 without proper enquiry or evidence collection. The appellant disputed the assumption of notice service despite denial and criticized the AO for not considering the family structure and power of purse of an illiterate farmer family. The Tribunal found that the AO's failure to provide adequate opportunity of being heard to the assessee and the lack of material in the assessment order warranted setting aside the assessment and remanding the case back to the AO for fresh consideration.

Issue 2: Service of Notice
The appellant contended that no notice under section 148 or 142(1) was served on the assessee, questioning the basis for the assessment and penalty proceedings. The Tribunal noted the absence of crucial details in the assessment order regarding the service of notices, leading to the conclusion that the assessee was not given a fair opportunity to present their case. Consequently, the Tribunal set aside the penalty proceedings as they were based on the same flawed assessment order.

Issue 3: Validity of Assessment Order
The Tribunal observed that the assessment order lacked essential details regarding notice service and failed to consider the explanations and evidence provided by the assessee. The Tribunal emphasized the importance of providing a fair hearing and remanded the case to the AO for a fresh assessment after affording the assessee an adequate opportunity to present their case.

Issue 4: Consideration of Family Structure
The Tribunal addressed the appellant's argument regarding the family structure and power of purse of the assessee, highlighting the need for a comprehensive examination of the facts and circumstances. The Tribunal found that the assessment lacked proper consideration of these aspects and ordered a fresh assessment to ensure justice and fairness in the proceedings.

Issue 5: Addition of Cash Deposit
The Tribunal analyzed the cash deposit in the bank account and the explanations provided by the assessee regarding the source of funds. The Tribunal found merit in the appellant's contentions and set aside the assessment order, emphasizing the importance of a thorough examination of the evidence and providing a fair opportunity for the assessee to present their case.

Issue 6: Imposition of Penalty
The Tribunal considered the penalty imposed under section 271(1)(c) for alleged concealment of income in light of the flawed assessment order. As the assessment order was set aside for reassessment, the Tribunal concluded that the penalty proceedings were consequential and also needed to be set aside. The Tribunal allowed the appeal filed by the assessee on this issue.

Issue 7: Opportunity of Being Heard
The Tribunal stressed the significance of providing the assessee with a fair opportunity of being heard and highlighted the shortcomings in the assessment proceedings. The Tribunal's decision to remand the case back to the AO for fresh assessment underscored the importance of procedural fairness and thorough consideration of all relevant factors in tax proceedings.

In conclusion, the Tribunal allowed the appeals filed by the assessee on various grounds, setting aside the assessment order and penalty proceedings, and remanding the case back to the Assessing Officer for fresh consideration to ensure justice and procedural fairness.

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