ABDUL JILANI BADAL KHAN,MUMBAI vs. ITO, WARD 27(1)(1), MUMBAI, NAVI MUMBAI

On the facts and circumstances of the case and in law, the appeal of the appellant before the CIT (A) may please be restored back and the non- compliance of the appellant in respect of the notices issued by the CIT (A) may please be excused as it was for the genuine reasons.

Without prejudice to the above and on the facts and circumstances of the case and in law, the Ld. CIT(A) / NFAC erred in not deciding the appeal on merits of the case.

On the facts and circumstances of the case and in law, the CIT (A) has erred in confirming the addition of Rs.10,56,000 being cash deposits in the bank account of the appellant as unexplained money under section 69A of the Act.

In this case, the assessment order was passed under section 147 r.w.s. 144 of the Act. During the year, the assessee deposited cash amounting to Rs.10,56,000/- in savings bank account maintained in Standard Chartered Bank as per the ITS details. Since the assessee had not submitted any details, an amount of Rs. 10,56,000/- was added to the total income of the assessee as Unexplained money u/s 69A. An appeal against the aforesaid order was preferred before the Ld. CIT(A) / NFAC which was subsequently dismissed on account of non compliance before him.

It was noticed that the instant appeal before the Bench is delayed by 513 days. In this regard, the wife of the late assessee has filed an affidavit alongwith an application for condonation of delay

On careful consideration of the submissions of the assessee, we are of the view that the delay was not intentional but due to unavoidable and sufficient cause. In this connection, reliance could be placed on the landmark decision of hon’ble Supreme Court which inter alia held in Collector, Land Acquisition v Mst. Katiji And Others- 167 ITR 471 (SC) that “ordinarily, a litigant does not stand to benefit by lodging an appeal late……..Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated….Any appeal or any application, other than an P a g e | 4 A.Y. 2011-12 Late Abdul Jilani Badal Khan application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period…. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk.” We therefore, condone the delay in fling of the appeal and proceed with the appeal.

Before us, the ld.AR contended that as the assessment order was also passed ex parte u/s 144 of the Act, he requested to send back the entire matter to the AO for framing assessment order de novo. It is assured that necessary compliance will be made before him. The ld.DR did not oppose the request.

We have heard the rival parties and perused the material available on records. It is observed that the ld.CIT(A) dismissed the appeal solely on the ground of non compliance before him. He failed to adjudicate the issues raised in the grounds of appeal and did not examine the materials available on record. Such dismissal without deciding the appeal on merits is contrary to the principles of natural justice. It is settled law that it is the duty of the appellate authority to dispose of an appeal on merits after considering the material on record,

In the result, the appeal stands allowed for statistical purposes.