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Income Tax Appellate Tribunal, Hyderabad ‘ SMC ‘ Bench, Hyderabad
Before: SHRI LALIET KUMAR
This appeal is filed by the assessee, feeling aggrieved by the order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi dated 27.11.2021 for the AY 2017-18 on the following grounds :
“1. The assessment was completed ex-parte and the assessee was not given proper opportunity to explain the sources. 2. The AO erred in making addition of Rs.2,65,533/- on account of difference in salary. 3. The AO erred in treating cash deposits of Rs.14,96,000/- as unexplained money u/s 69A. 4. AO has erred in not considering the fact that the assessee had sources for explaining the cash deposits of Rs.14,96,000/-.
Facts of the case, in brief, are that assessee is an individual and salaried employee who filed his return of income for the A.Y. 2017-18 on 24.07.2017 admitting total income of Rs.5,48,550/-. The case was selected for scrutiny as there was cash deposits for an amount of Rs.14,96,000/- in the bank account of assessee during the demonetization period. As the assessee failed to appear before the Assessing Officer to explain the sources for the same, Assessing Officer had completed the assessment u/s 144 of the Act interalia making an addition of Rs.14,96,000/- as unexplained money u/s 69 of the Act to the income of the assessee. Further an amount of Rs.2,65,533/- was also added towards difference of salary.
Feeling aggrieved with the order dt.19.12.2019 passed by the Assessing Officer, assessee filed the present appeal which was later migrated to the Ld. CIT(A), NFAC, Delhi, who dismissed the appeal of assessee by holding as under :
“4. During the course of appellate proceedings, the appellant was granted opportunity to file submissions and documents in support of its grounds of appeal vide notices dated 22.01.2021 (fixing date of compliance 29.01.2021) and 14.10.2021 (fixing date of compliance 21.10.2021) after implementation of faceless appeal scheme. However, till date there has been no response from the appellant. Therefore, it is apparent that the appellant have-no submissions/documents to submit in support of its grounds of appeal. I have considered the statement of facts and grounds of appeals filed as well as the assessment order. On carefully considering the facts and circumstances and assessment order, I find no infirmity in the assessment order. It is a fact that there was cash deposit in bank accounts which appellant could not explain. Further, there was difference in salary income as per form 26AS and as declared by the appellant, which appellant could not reconcile/explain. Being a salaried employee, the salary deposited in the bank account was by way of credit entry. Thus cash deposits remain unexplained. The AO has passed a speaking order mentioning all the facts and reason for the addition. Accordingly, the addition made by the AO is confirmed.”
4. Feeling aggrieved with the order of ld.CIT(A), assessee is now in appeal before me.
5. Before me, ld. AR for the assessee had submitted that as per the Registry, this appeal was filed with delay of 1066 days from the date of serving of the order of ld.CIT(A) on assessee i.e., 28.12.2019. Ld. AR has submitted that the order of ld.CIT(A) was passed on 27.11.2021 and not on 28.12.2019. Hence, the delay reported by the Registry for a period of 1066 days is incorrect. Assessee had filed appeal was filed on 27.01.2023. Hence, there is a delay of 760 days.
5.1. Ld. AR further submitted that when the order of ld.CIT(A) was passed i.e., on 27.11.2021, Covid was in full swing and due to which, assessee was not in a position to file the appeal within the stipulated period under the Act. The Hon’ble Supreme Court in the case of M.A.No. 21/2022 in M.A.No. 665/2021 in SMW(C) No.3 of 2020 by order dated 10/01/2022 had extended the period of limitation. The ld. AR filed an affidavit, explaining the reasons for the delay in filing the appeal before the Tribunal. In the affidavit, ld. AR had submitted that the copy of the order was not available in ITBA Portal of the assessee and that the order was not communicated to the assessee by speed post or registered post or otherwise. Ld. AR further submitted that assessee is an employee in Law Enforcement Agency and is having high regards to the Enforcement Law and therefore, there is no reason not to file the appeal within the period prescribed by the statute. It was contended that the delay in filing the appeal was on account of the above reasons and was bonafide one.
On the other hand, the above said facts have not been disputed by the learned senior Departmental Representative. Before the Bench, the learned senior Departmental Representative failed to submit the evidence of servicing of order on the assessee through registered post / speed post. It was submitted that ld.CIT(A) served notice to the assessee through the e-mail, on the date of passing of the order.
I have heard the rival submissions and perused the material on record. On perusal of the record, I find that the assessee had preferred appeal before the Tribunal immediately after the Covid period and he had also filed an affidavit explaining the delay in filing the appeal. Hence, I for the reasons mentioned in the affidavit and also in view of the order of Hon’ble Supreme Court (supra), deem it appropriate to condone the delay. Thus, the delay is condoned and the appeal is admitted for hearing.
Coming to the merits of the case, ld.AR for the assessee has submitted that on account of covid, he was not able to participate in the proceedings and had sought one more opportunity to participate in the proceedings before the ld.CIT(A). Ld.DR submitted that the assessee should be careful in participating in the proceedings before the ld.CIT(A).
I have heard the rival submissions and perused the material on record. It is an admitted fact that the assessee has not appeared on the date fixed for hearing i.e. 22.01.2021. However, no fresh notice was served or issued by NFAC to the assessee after implementation of NFAC / ld.CIT(A). In my view, it is incumbent upon the Revenue / NFAC to serve notice on the assessee before proceeding to decide the matter exparte after it was received by it from the earlier ld.CIT(A). In my view, nothing has been brought on record that whether the assessee was negligent in prosecuting the appeal and efforts were made to serve notice to the appellant at the appellate proceedings before NFAC. In view of the above, I am of the opinion that the matter is required to be remanded back to the file of ld.CIT(A) / NFAC with a direction to decide the matter afresh. Needless to say, that the assessee shall file all the evidence in support of his case and if the assessee files any evidence, the same may be acceptable by the ld.CIT(A) / NFAC without making any objection in accordance with law. Further, if assessee files any documents / evidence, ld.CIT(A) shall call for the remand report from the Assessing Officer and thereafter decide the issue in accordance with the law. The assessee is also directed to participate in each and every hearing granted by the ld.CIT(A) / NFAC and shall comply with all the conditions. In the light of the above, the appeal of the assessee is allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for statistical purposes.