ASHOK BHAGAT,MADHEPURA vs. ITO WARD- 3 (5), SAHARSA

The instant appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2017-18 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income- tax (Appeal)-NFAC, Delhi [in short ld. ‘CIT(A)’] dated 30.05.2022 arising out of the assessment order framed u/s 147 of the Act dated 04.12.2019. 1.1. Before entering into the merit of the case, ld. Counsel for the assessee had pressed his petition for condonation of delay as the appeal has been filed I.T.A. No.: 256/PAT/2023 Assessment Year: 2017-18 Shri Ashok Bhagat. after a delay of 384 days. Ld. Counsel for the assessee submits that the appellate order is deemed to have been served on 30.09.2022 as the order was passed online. The delay in filing of the appeal is due to the fact that the appellant was seek and suffering from depression due to the sad demise of his younger brother. The petition filed by the assessee is supported with an affidavit. Ld. D/R did not raise any objection in condoning the delay. Keeping in view the catena of decisions of the Hon'ble Apex Court in which it has been held that a case should be decided on merit and not on technical issue and further considering the facts stated in the petition, we condone the delay. The delay is hereby condoned and the appeal is admitted for hearing.

The brief facts of the case of the appellant are that the assessee is an individual and proprietor of M/s. Ashok Khad Beez Bhandar, derived income from retail sale of the fertilizers and seeds. The case of the assessee was selected for scrutiny on the premise that there had been cash deposit during the demonetization period. The Assessing Officer (hereinafter referred to as ld. 'AO') has passed the assessment order u/s 147 of the Act by making addition of Rs. 16,47,960/- as cash deposited during the demonetization period and treated the same as unexplained cash credit u/s 68 of the Act and an addition of Rs. 15,55,000/- has been made. The ld. AO assessed the total income of the assessee at Rs. 15,55,000/- as unexplained money u/s 69A read with Section 115BBE of the Act and calculated the income u/s 44AB of the Act at Rs. 92,960/- and assessed the income at Rs. 16,47,960/-. The said order has been challenged by the assessee before the ld. CIT(A) wherein also his appeal has been dismissed on the basis that despite being given ample opportunity to the appellant he failed to offer any explanation about the nature and source of the cash deposit amounting to Rs. 15,55,000/- in the bank account. Being aggrieved and dissatisfied with the impugned order, the present appeal has been preferred. 2.1. The ld. Counsel for the assessee challenges the impugned order on various grounds but his sole ground is that order has been passed behind the back of the assessee and assessee has been given an opportunity to submit the entire papers before the ld. CIT(A). Ld. Counsel for the assessee further Page 2 of 4 I.T.A. No.: 256/PAT/2023 Assessment Year: 2017-18 Shri Ashok Bhagat. submits that ld. CIT(A) did not consider this fact that appellant has already submitted copy of VAT return, copy of certificate from Bank regarding deposit of cash during the demonetization period as well as copy of returned income with acknowledgement from the Departmental website. 2.2. Ld. D/R supports the impugned order.

On perusal of the record and the order, it appears to us that before the ld. AO there was no compliance on behalf of the assessee and as per the order of the ld. AO assessee failed to discharge its onus though it is apparent from the order of the AO that assessee has uploaded the VAT return, bank account statement etc. Before the ld. CIT(A) also assessee could not be able to appear and order of the AO has been confirmed by the ld. CIT(A) on the ground that during the appellate proceeding the appellant was provided many opportunities but appellant has remained non-compliant. The order of the AO has been confirmed by the ld. CIT(A) only on this ground that appellant failed to comply the ample opportunity during the proceedings. The submission of the ld. A/R is that assessee should be given an opportunity to place all the papers which the appellant has filed before us that will satisfy the case of the appellant with respect to the amount alleged to be deposited during the demonetization period. 3.1. Keeping in view the fact that order of the ld. CIT(A) has been passed only on this ground that there was no compliance on behalf of the assessee with regard to explanation asked by the ld. CIT(A) and further considering the submission of the ld. Counsel for the assessee that he should be given an opportunity to place the papers before the ld. CIT(A), for the interest of justice, we are in this view that assessee should be given an opportunity to place all those papers before the ld. CIT(A) with regard to his case. Accordingly, the order of ld. CIT(A) is set aside, assessee has been given an opportunity to place all those papers before the ld. CIT(A) and ld. CIT(A) is hereby directed to hear the case of the assessee and then pass a reasoned order. The appeal is here by restored to the file of ld. CIT(A) for fresh adjudication.