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Income Tax Appellate Tribunal, JAIPUR BENCHES,”A” JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 1324/JP/2019
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 1324/JP/2019 fu/kZkj.k o"kZ@Assessment Year : 2010-11 cuke Smt. Panchi Devi The ITO, Vs. W/o Sh. Ram Kishan Meena, Ward, Village- Pundarpada, Dausa. Tehsil- Baswa, Dausa. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: EIJPD 0848 G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri S. L. Poddar (Adv.) jktLo dh vksj ls@ Revenue by : Miss Chanchal Meena (ACIT) lquokbZ dh rkjh[k@ Date of Hearing : 09/07/2020 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 10/07/2020 vkns'k@ ORDER PER: VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 29.03.2019 of ld. CIT(A), Alwar for the assessment order 2010-11. Due to prevailing COVID-19 pandemic condition the hearing of the appeal is concluded through video conference. 2. There is delay of 152 days in filing the present appeal. The assessee has filed an application for condonation of delay which is supported by the affidavit of the assessee. Smt. Panchi Devi vs. ITO
We have heard the ld. AR as well as the ld. DR on condonation of delay in filing the appeal. The assessee has explained the cause of delay as the impugned order of the ld. CIT(A) was not received by the assessee and only when the assessee got a certified copy of the same the present appeal has been filed. The ld. AR of the assessee has further pointed out that even the notices issued U/s 148 as well as 142(1) of the Act by the AO were not received by the assessee and the assessee challenged the service of notices issued by the AO before the ld. CIT(A). The ld. CIT(A) instead of deciding the issue, as raised by the assessee has rejected the ground by giving some irrelevant reasoning.
Thus, the ld. AR has submitted that when the assessee belongs to a village and has not received the notices issued by the AO as well as the impugned order of the ld. CIT(A) then the delay in filing the appeal is neither intention nor willful but due to the reasons as explained by the assessee. He has relied upon the judgment of Hon’ble Bombay High Court in case of Vijay Vishan Meghani vs. DCIT (2017) 398 ITR 250 as well as other decisions on this point the Court should take lenient view while considering reasonable/sufficient cause for delay and the matters should be decided on merits instead of technical reasons.
Thus, the ld. AR has pleaded that the delay of 152 days in filing the Smt. Panchi Devi vs. ITO appeal may be condoned and the assessee of the appeal be decided on merits.
On the other hand, the ld. DR has vehemently opposed to the condonation of delay and submitted that the assessee did not attend the proceedings before the AO and the assessment order was passed ex-parte. Further, the assessee without explaining the reasons for not producing evidence before the AO sought to file the same before the ld. CIT(A) which was declined by the ld. CIT(A).
We have considered the rival submissions as well as relevant material on record. The assessee is not a regular tax payer and the AO has issued notices U/s 148 of the Act to assess a sum of Rs. 6,00,000/- being unexplained investment in purchase of the property. The assessment was completed U/s 144 r.w.s. 147 of the Act when nobody has appeared on behalf of the assessee. While completing the assessment, the AO has assessed the total income of the assessee at Rs. 6,00,000/- being unexplained investment in land. The assessee filed before the ld. CIT(A) and challenged the service of notices U/s 148 as well as U/s 142(1) of the Act. The ld. CIT(A) has produced this ground in part 5 of the impugned order is as under:- Smt. Panchi Devi vs. ITO
“5. The ground no. 1 is against the receiving of notice u/s 148 and U/s 142(1) of the Act 1961 and passing the ex-party assessment order.”
However, the ld. CIT(A) has not adjudicated this factual issue of valid service of notice issued U/s 148 as well as U/s 142(1) of the Act but rejected the grounds of the assessee in para 5.3 as under:-
“5.3 I have perused the assessment order as well as submissions filed by the appellant. The reopening of the assessment in the present case is under the provisions of Section 147(1). The Assessing Officer must have reason to believe that any income chargeable to tax has escaped assessment for the Assessment Year in question. The expression 'reason', as the Supreme Court in Assistant CIT Vs. Rajesh Jhaveri Stock Broker Pvt. Ltd.2 has held, means a cause or justification. If the Assessing Officer has a cause or justification to know or suppose that income had escaped assessment, he can be said to have reason to believe that income had escaped assessment. The Supreme Court has held that the expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. At that stage what is required is 'reason to believe' and not the establishment of escapement of income. Whether the materials would conclusively prove an escapement of income is not the concern at that stage. Accordingly, appellant's ground of appeal on the issue is dismissed. Thus, it is clear that the ld. CIT(A) has decided this issue of validity of reopening instead of deciding the factual aspect of valid service of notices as challenged by the assessee. The assessee having a rural back 4 Smt. Panchi Devi vs. ITO ground and without any source of income has explained the reasons for non appears before the AO as non receipt of notices issued by the AO.
Further, the delay in filing the appeal is also explained due to the reasons of non receipt of the impugned order of the ld. CIT(A) and only after the certified copy obtained from the office of the ld. CIT(A) the assessee has filed the appeal. There is no material or fact on record to controvert the reasons explained by the assessee in the application for condonation of delay which is duly supported by the affidavit wherein the assessee has solemnly affirmed the non receipt of the impugned order and subsequent certified copy obtained only on 14.11.2019.
Accordingly, in the facts and circumstances of the case and keeping in view the rural back ground and village address of the assessee in Tehsil Baswa we are satisfied that the assessee was having a reasonable cause for delay in filing the present appeal. Therefore, in the facts and circumstances of the case and in the interest of justice we condone the delay of 152 days in filing the appeal.
The assessee has raised the following grounds:-
“1. Under the facts and in the circumstances of the case the learned CIT(A) has erred in confirming the addition of Rs. 6,00,000/- on account of unexplained investment for purchase of property.
Smt. Panchi Devi vs. ITO
Under the facts and in the circumstances of the case the learned CIT(A) has erred in not allowing opportunity of being heard for submitting the application under rule 46A of the Income Tax Rules, 1962 when the order was passed u/s 144 of the income tax Act, 1961.”
The ld. AR of the assessee has submitted that the land in question was purchased by the husband of the assessee in the joint name and therefore, the investment in question of Rs. 6,00,000/- was made by the husband of the assessee and not by the assessee. It is only because of the fact that the land in question was purchased in the joint name her name is appearing in the sale deed. The assessee has explained this fact and also supported by the evidence before the ld. CIT(A) however, the ld. CIT(A) has declined to admit the evidence filed by the assessee in support of the explanation and source of the said investment of Rs. 6,00,000/-. Before us the ld. AR of the assessee has pleaded that when the assessment was completed ex-parte due to the reason of non service of notices then the assessee should have been allowed to produce the supporting evidence to explain the source of investment. Therefore, it is prayed that the additional evidence filed by the assessee before the ld. CIT(A) may be admitted and the matter may be set aside to the record of the ld. CIT(A) for deciding the same on merits after considering the evidence filed by the assessee. 6 Smt. Panchi Devi vs. ITO
On the other hand, the ld. DR has vehemently opposed to the prayer of admitting the additional evidence and contended that though the assessee produced evidence before the ld. CIT(A) however, the assessee has not explained any reasons as to why the said evidence was not produced before the AO. Further, the assessee even not filed any application Under Rule 46A of the Income Tax Rules hence, the ld. CIT(A) declined to admit the additional evidence which is justified.
We have considered rival submissions as well as relevant material on record. Undisputedly the assessment order was passed ex-parte when nobody has attended the proceedings before the AO. It is pertinent to note that the assessee has given the reasons for non appearance before the AO as the notices issued by the AO U/s 148 as well as 142(1) were not served upon the assessee. The assessee has duly taken this ground before the ld. CIT(A) however, the ld. CIT(A) instead of verifying this fact of valid service of notices issued by the AO has rejected the ground of appeal by giving some different reasoning.
The relevant part of the ld. CIT(A) impugned order has reproduced in the foregoing part of this order. Thus, it is clear from the impugned order that this objection of the assessee of non service of notices issued by the AO was even not examined or verified by the ld. CIT(A). Once Smt. Panchi Devi vs. ITO the assessment order was passed ex-parte and the assessee has taken a stand that the notices were not served upon the assessee then the evidence produced by the assessee before the ld. CIT(A) in support of the source of the investment of Rs. 6,00,000/- in the land ought to have been admitted and considered as this was the first occasion when the assessee could file the said evidence. The ld. CIT(A) instead of considering the evidence filed by the assessee decline to admit the same. The relevant part of the ld. CIT(A) order in para 6.4 is as under:-
“6.4 I have considered the above mentioned facts of the case. The assessee did not attend the assessment proceedings and also not filed any details before the AO. Accordingly, I do not find any reason to admit any additional evidences at this stage. Even the appellant has not filed any application under rule 46A of IT Rule. Accordingly, the addition of Rs. 6 lakhs is sustained and the appellant’s ground of appeal on the issue is dismissed.”
Therefore, the ld. CIT(A) has rejected the request for admission of additional evidence on the ground that the assessee has not filed any application Under rule 46A of IT Rules. Once, the assessee has explained the reasons for non production of evidence before the AO as the notices were not received by the assessee then the additional evidence proposed to file by the assessee ought to have been considered by the ld. CIT(A). Accordingly, in the facts and Smt. Panchi Devi vs. ITO circumstances of the case and in the interest of justice we admit the additional evidence filed by the assessee and the matter is set aside to the record of the ld. CIT(A) for deciding the same afresh after considering the additional evidence filed by the assessee as well as giving one more opportunity of hearing to the assessee. In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 10/07/2020. Sd/- Sd/- ¼fot; iky jko½ ¼foØe flag ;kno½ (Vikram Singh Yadav) (Vijay Pal Rao) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 10/07/2020. *Santosh. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Smt. Panchi Devi, Dausa. 2. izR;FkhZ@ The Respondent- ITO, Ward, Dausa. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File {ITA No. 1324/JP/2019} vkns'kkuqlkj@ By order,
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