Order set aside as notices not sent to e-mail address mentioned in Appeal Form-35

Ex parte order remanded as notices not sent to e-mail address mentioned in Appeal Form-35 but to email linked to PAN

ABCAUS Case Law Citation
ABCAUS 3656 (2023) (02) ITAT

In the instant case, the assessee had challenged the ex parte order passed by the CIT(A) on the ground that no reasonable opportunity was granted to him before the first appellate authority and also that the Assessing Officer (AO) failed to consider the material that was produced before him to explain the possession of cash, gold and bullion that was found in his custody.  

The assessee was dealing in gold ornaments. He was intercepted by the flying squad in view of the Parliamentary Constituency Elections. The assessee was found with large amount of cash, gold ornaments. The assessee explained that he was travelling for the purpose of selling the gold and ornaments. The flying squad seized the cash and gold.

According to the Assessing Officer when asked, the  assessee  failed  to  produce  any  proof  of  his  travel  and also to establish the sources of the cash and gold.  

On this premise, the Assessing Officer made addition to the  income of the assessee and passed the order.

Aggrieved, assessee preferred appeal before the CIT(A). The impugned order showed that in spite of granting several adjournments notifying the dates of hearing, the assessee   failed to respond and, therefore, the CIT(A) drew an inference that the assessee lost interest in the matter and appeal was liable to be dismissed for non-prosecution. The CIT(A), however, adverted to the facts of the case and decided it on merits in the absence of the assessee and dismissed it by way of the impugned order.

Before the Tribunal the assessee submitted that the e-mail address that is linked to the PAN was different from the e-mail that was furnished by him in Appeal Form-35 at the time of  preferring appeal before the CIT(A), but, unfortunately, such e-mail address furnished in Form-35 was lost sight and the notice of CIT(A) perhaps could have been sent to the e-mail address, which was found in the PAN details, which was not in vogue.

He further contended that the authorities below failed to consider material produced by the assessee in the shape of purchases and sales bills, stock register, GST returns, ITRs etc.

The assessee prayed that in the interest of justice, he be given  an opportunity, to prosecute the appeal diligently by placing  the material that was produced before the Assessing Officer, before the CIT(A) also, so that the ends of justice could be met.

The Revenue submitted that the notices  were  sent  to  the  e-mail address furnished by the assessee in his PAN details and, therefore, it could not be said that there was no sufficient  notice to the assessee.  

The Tribunal noted that the variance in the e-mail address furnished in Form-35 and the e-mail address that was tacked to the PAN was verifiable. The Tribunal opined that the ordinary human conduct has to be considered while deciding the matters and the  assessee  certainly  does  not  stand  to  gain  by  remaining ex patre before CIT(A) having preferred the appeal.  It is possible that the e-mail  address  which  is  in  vogue  was  furnished  to  the  authorities  in Form-35  and  it  is  also  possible  that  the  other  e-mail  address  that  was tacked  to  the  PAN  details  may  not  be  in  regular  use.

The Tribunal opined that since the assessee does not stand to gain by omitting his presence before the CIT(A) and there was nothing to dis-believe the version advanced by the assessee.

Accordingly, the Tribunal set aside the impugned orders and restored the  issue to the file of Assessing Officer to consider and comment on the documentary evidence produced before him in the shape of purchase and sales bills, extracts from the stock  register, GST return, ITRs etc. returning a finding of fact  accordingly, after affording an opportunity to the assessee.

Download Full Judgment Click Here >>

• Case remanded in absence of finding if disallowance u/s 40A(3) covered by Rule 6DD
• For investment in share capital, source of investment is outside the control of the investee company
• ICAI issues revised Code of Ethics (13th edition)- Applicable Dates
• Modified Norms for Nomination in Demat Accounts and Mutual Fund Folio
• CSR implementation through zero coupon zero principal instruments