2020 (9) TMI 282 - AT - Income Tax

Appeal Disposed with Directions for Fresh Examination to Ensure Fair Opportunity and Natural Justice

The appeal was disposed of with directions to the High Court to re-examine the issues afresh, providing the assessee with a fair opportunity to present ... Reopning of assessment u/s 147 - roving and fishing enquiry - Whether a classic case of borrowed satisfaction where the AO has not conducted any inquiry to find out whether the report received by him from ITO (I&CI) was correct or not - HELD THAT:- Reasons so recorded by the AO before issuance of notice u/s 148 of the Act, around which the rival contentions have been advanced, is not discernable either from the assessment order or any other material brought on record by either of the parties and in absence of the same, we are unable to take a view in the matter. Having said that, the fact that the assessee has already taken this ground of appeal before the ld CIT(A) and there is no finding recorded by the ld CIT(A) disposing off such ground of appeal, we believe that it would be fair that the ld CIT(A) should dispose off the said ground of appeal first and where the assessee still have any grievance, he can approach the Tribunal and we will then have the opportunity to consider the findings of the ld CIT(A) as well. To our mind, the same is also in accordance with judicial discipline where the ground of appeal is decided by the first appellate authority and then, by the Tribunal. We accordingly set aside this ground of appeal to the file of the ld CIT(A) to decide the same by way of a speaking order after providing reasonable opportunity to the assessee. The assessee shall be at liberty to raise the contentions so advanced before us and the same are thus left open and the ld CIT(A) shall decide the same as per law. Hence, the ground of appeal is allowed for statistical purposes. Non provising reasons to beileve - HELD THAT:- Reasons so recorded before issuance of notice u/s 148 have been duly communicated to the assessee and the latter having not objected to the reopening of the proceedings, there is no prejudice which is caused to the assessee by way of denying his rightful right to object to the reopening of the proceedings and there is thus no violation of the directives of Hon’ble Supreme Court as laid down in the case of GKN Driveshaft. [2002 (11) TMI 7 - SUPREME COURT] The decision of the Hon’ble Karnataka High Court in case of CIT vs V. Ramaiah [2020 (7) TMI 134 - KARNATAKA HIGH COURT] is distinguishable as in that case, it was established on facts that reasons were not supplied to the assessee, however, in the present case, as we have seen above, the reasons have been supplied not once but twice to the assessee but the assessee has chosen to remain silent and has not objected to the reasons so recorded. In the result, the ground so taken is dismissed. Order passed by the ld CIT(A) without providing sufficient and adequate opportunity to the assessee - HELD THAT:- This matter has been listed for hearing on couple of occasions by the ld CIT(A) and has been adjourned at the request of the ld AR on behalf of the assessee and again on the last date of hearing when the matter was scheduled for hearing, apparently, there is no compliance on part of the assessee or his ld AR. Thereafter, on the next day, the matter was decided ex-parte by the ld CIT(A) summarily without deciding on merits. Therefore, in the interest of justice and fair play and especially where the matter has not been decided on merits, we believe that the assessee deserves one more opportunity to put forth his arguments and contentions and we accordingly set aside the matter to the file of the ld. CIT(A) to examine the matter afresh after providing reasonable opportunity to the assessee - Ground allowed for statistical purposes Issues Involved:1. Condonation of delay in filing the appeal.2. Validity of notice under section 147/148.3. Non-provision of reasons for reopening the assessment.4. Ex-parte order passed by CIT(A).5. Addition of unexplained loan and advances.6. Levy of interest under sections 234B, 234C, and 234D.Detailed Analysis:1. Condonation of Delay in Filing the Appeal:The appeal was delayed by 42 days. The assessee claimed the delay was due to not receiving the order copy timely and filed an affidavit supporting this claim. The Supreme Court's stance on condonation of delay, emphasizing a liberal approach to ensure justice, was cited. The Tribunal found the reasons satisfactory and condoned the delay, admitting the appeal for adjudication.2. Validity of Notice Under Section 147/148:The assessee challenged the validity of the notice, arguing it was based on 'borrowed satisfaction' without independent verification by the AO. The assessee contended that the information regarding cash deposits was incorrect, and thus, the notice was void ab initio. The Tribunal noted that the assessee had raised this issue before the CIT(A), but it was not addressed. The Tribunal remanded this ground to the CIT(A) for a detailed speaking order after providing the assessee an opportunity to present his case.3. Non-Provision of Reasons for Reopening the Assessment:The assessee argued that the AO did not provide the reasons for reopening the assessment, which vitiated the notice and subsequent proceedings. The Revenue countered that the reasons were provided on two occasions, evidenced by acknowledgments on official documents. The Tribunal reviewed the documents and found that the reasons were indeed communicated to the assessee's authorized representative. Therefore, the Tribunal dismissed this ground, concluding there was no prejudice caused to the assessee.4. Ex-Parte Order Passed by CIT(A):The assessee claimed that the CIT(A) passed the order ex-parte without providing adequate opportunity to present his case. The Tribunal observed that while several opportunities were given, the assessee failed to appear or comply. However, to ensure justice, the Tribunal set aside the ex-parte order and remanded the matter to the CIT(A) for a fresh decision after giving the assessee a reasonable opportunity to be heard.5. Addition of Unexplained Loan and Advances:The AO added Rs. 27,08,900/- as unexplained money due to the assessee's failure to substantiate the source of the unsecured loan. Given the remand of the case to the CIT(A) for fresh adjudication, this issue was also to be reconsidered by the CIT(A) along with the other grounds.6. Levy of Interest Under Sections 234B, 234C, and 234D:This ground was deemed consequential and did not require separate adjudication. The outcome would depend on the final determination of the other issues upon remand.Conclusion:The appeal was disposed of with directions to the CIT(A) to re-examine the issues afresh, providing the assessee with a fair opportunity to present his case. The Tribunal emphasized ensuring justice and adherence to principles of natural justice in the reassessment proceedings.