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TMI Blog2024 (5) TMI 1234X X X X Extracts X X X X X X X X Extracts X X X X ..... are as follows : "i. That on the facts and circumstances of the case, the CIT(A) has erred in passing the order in limine without appreciating the fact that there was reasonable cause for delay in filing of the appeal. That the CIT(A) has erred both in law and on facts in confirming the addition of Rs. 12,10,000/- on account of unexplained investment u/s 69 made by the AO without examining the merits of the case and without following principles of law. ii. That the CIT(A) has completely ignored the fact that there was only a delay of 90 days in filing the appeal which was not an inordinate delay. That the delay in filing the appeal was only due to the fact that the email on which all the notices were issued during the assessment was not that of the appellant. iii. That the CIT(A) has failed to appreciate that the assessee had filed the appeal immediately when it came to the notice of the assessee that an assessment order was passed u/s 148 was passed by the department. That the fact that the assessment order was passed came to the knowledge of the assessee only when the demand was pressed by the department. iv. That the CIT(A) has erred in not appreciating that the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department is that, the appellant had failed to disclose investment amounting to Rs. 12,10,000/- for the year under consideration. 6.2 That the appellant filed the return in response to notice under section 148 on 31/05/2021 vide acknowledgement No. 365148920310521 declaring an Income of Rs 1,32,62,520/-. The copy of the acknowledgement of the return filed in response to notice u/s 148 has been placed at page 2 of Paper Book (PB). 6.3 The appellant received several notices under section 142(1) on February 15, 2022, and March 14, 2022. However, the evidence of issue of the statutory notice under section 143(2), which is a mandatory requirement under the provisions of the Income Tax Act, 1961, was not seen reflected in the portal. The print out of the portal containing various notice along with reference number, date wise, are placed in paper book page no. 3. 6.4 Subsequently, the Ld. A.O had passed the assessment order u/s 147 r.w.s 144 on 30.03.2022 by making an addition of Rs. 12,10,000/- and the assessed income was determined at Rs. 1,44,72,520/-. 6.5 The matter was carried before the CIT (A ) NFAC , against the order of the AO dated, 30.03.2022 and the filing of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder u/s 144 of the IT Act. Later, filed the appeal with a delay of 120 days. It clearly emerges that the appellant had not filed the appeal within a period of 30 days as prescribed u/s 249(2) of the Act. Further, the reason given for the delay is also not admissible as sufficient cause. 2. As a result, this appeal is dismissed in limine." 8.1 The issue regarding the condonation of delay is also challenged by the assessee in ground no. 2 of the appeal Memorandum. 8.2 However in this appeal the Tribunal is concerned about the legal issue taken up by the appellant by way of additional ground, regarding non-issue of notice u/s 143(2) of the Act, 1961. 8.3 This ground is admitted, being a legal ground which goes to the root of the case, where a question of law has arised from the facts of the case, as per the judgment of the Hon'ble Supreme Court in the case of NTPC vs. CIT 229 ITR 383 (SC). 8.4 The submissions of the ld. Counsel in respect of this particular ground is reproduced as under: "Your Honor, it is very much necessary to deal with the legal ground as it goes to the root of the case before discussing the matter on merits. That the case of the appellant was re-opened vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has raised the issue of section 143(2) notice, even in course of appellate proceedings before the first appellate authority. However, it is seen that no copy of remand report is available in the portal and no copy of the remand report has been issued to the assessee for rebuttal and the ld. CIT(A) has also not discussed about the existence of remand report in his appellate order. He has also not discussed regarding issue of notice u/s 143(2) for which the remand report has been called, even though the appellate order u/s 250 has been passed on 09.01.2024 i.e. (14 days after calling for remand report). 9. In course of hearing, the ld. DR could not controvert the argument of the appellant regarding the issue and service of notice u/s 143(2) and admitted that no copy of remand report was available with him in the records and there is no evidence of service of notice u/s 143(2) either. 10. In our opinion the letter of the CIT (A) dated, 26.12.2023 addressed to the AO, asking for remand report in the matter of non-issue of statutory notice u/s 143(2), explains primarily the fact that the CIT (A), in course of appellate proceedings has already travelled beyond the issue of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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