SHRI BANWARI LAL,JAIPUR vs. INCOME TAX OFFICER, WARD-7-2, JAIPUR

PER SANDEEP GOSIAN, J.M. This appeal by the assessee is directed against the order dated 30.08.2011 of ld. CIT (A)-III, Jaipur for the assessment year 2007-08. The assessee has raised the following grounds of appeal :-

3. Under the facts and circumstances of the case the learned CIT (A) has erred in confirming the invocation of section 144 of the Income Tax Act, 1961 where no notice u/s 142(1) was srved to the assessee.

4. Under the facts and circumstances of the case the learned CIT (A) has erred in confirming the addition of Rs. 1,44,00,000/- on account of bank deposits which were made by the father of the assessee out of sale of agriculture land.

5. The assessee craves your indulgence to add amend or alter all or any grounds of appeal before or at the time of hearing.”

2. The assessee is an Individual. The AO completed the assessment by passing ex parte order dated 18.12.2009 under section 144 of the IT Act making total addition of Rs. 1,44,05,620/- on account of unexplained bank deposits and interest of Rs. 5,618/- thereon, maintained with the Central Bank of India, Bad Ke Balaji, Jaipur. The assessee filed appeal before ld. CIT (A) against the assessment order passed under section 144 of the IT Act. However, none has appeared on behalf of the assessee even before the ld. CIT (A) due to the reason that the assessee was not aware of the appellate order passed by the ld. CIT (A) as the assessee was not served with the ld. CIT (A)’s order passed on 30.08.2011. Therefore, the appeal of the assessee was dismissed by passing the impugned ex parte order.

3. Before us, the ld. A/R of the assessee has submitted that the assessee has never been served with the order dated 30.08.2011 passed by the ld. CIT (A) and came to know about the order only when the assessee received notice for recovery of demand. The assessee then applied for certified copy of the order which was received on 08.04.2019 and immediately thereafter filed the appeal on 03.05.2019 before this Tribunal. Thus the ld. Counsel for the assessee submitted that the receipt of the ld. CIT (A)’s order should be taken as on 08.04.2019 when the assessee received the copy of the order first time and filed the appeal within 30 days of receipt of the certified copy of appellate order and it be treated as there was no delay in filing the appeal. In support of the above, an affidavit dated 25.09.2019 duly sworn in by Shri Banwari Lal, the assessee, has been filed before this Tribunal.

The ld. Counsel for the assessee citing the judgment of Hon’ble High Court in the case of Vijay Vishan Meghani vs. DCIT, (2017) 398 ITR 250 (Bombay) and Hon’ble Supreme Court in case of Improvement Trust vs. Ujagar Singh, Civil Appeal Nos.

2395 of 2008 dated 26.06.2010 (SC), and various other decisions, submitted that the delay in filing the appeal may be condoned by the Appellate Authority requiring substantial justice to the assessee and the order of the ld. CIT (A) be set aside and the matter may be remanded to the record of the ld. CIT (A) for deciding the same afresh after giving an opportunity of hearing to the assessee.

“ 2.2. During the appellate proceeding, various notices were issued and served through registered posit to the appellant, however, no compliance was made in this regard. The details of same are as under – S.N. Date of Notice Date of hearing Remarks

From the above factual position and also in view of persistent non compliance on the part of the appellant in the assessment proceedings as discussed above, it is felt that the appellant is a habitual defaulter and also not interested in pursuing his present appellant proceeding. In view of the same, I have left with no option but to decide the issue, under consideration, based on the materials available with the records as being discussed herein under. In view of the above facts and circumstances, the reasons and findings given in the original and reassessment proceeding and also in absence of any counter submission/defense made available by the appellant in the present proceeding, I hereby confirm the invocation of Sec. 144 of the Act and also the additions of Rs. 1,44,00,000/- towards unexplained deposits in bank accounts and Rs. 5618/- interest earned thereon, made on these accounts, in the appellant case. Thus the sole effective ground of appeal is disallowed.”

Since the impugned order of the ld. CIT (A) does not touch the merits of the issue regarding the addition made by the AO, therefore, having regard to the facts and circumstances of the case as well as in the interest of justice, we grant one more opportunity to the assessee to present its case for the assessment year under consideration before the ld. CIT (A). Accordingly, subject to the cost of Rs. 5,000/-, we set aside the matter pertaining to the assessment year 2007-08 to the record of the ld. CIT (A) for deciding the same afresh after giving one more opportunity to the assessee as well as after considering the written submissions and other supporting evidence, if any, to be filed by the assessee. The assessee has to produce the proof of payment of cost before the ld. CIT (A).

Order pronounced in the open court on 02/02/2021.