BALDEVA RAM DHOJAK,JAIPUR vs. INCOME TAX OFFICER, NAGAUR

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE DR. MITHA LAL MEENA, HON’BLE ACCOUNTANT MEMBER AND SHRI SUDHIR PAREEK, HON’BLE JUDICIAL MEMBER ITA No. 1128/Jodh/2025 (Assessment Year – 2009-10) Baldeva Ram Dhojak Income Tax Officer D 62, Nirman Nagar Shyam Nagaur Nagar, Jaipur-302019 PAN No. AEVPD 7848 E Assessee by Nivya Jain, CA (Virtual) Smt. Seema Meena, CIT-DR (Virtual) Revenue by Date of Hearing 19 / 05 / 2026. Date of Pronouncement 03 / 06 / 2026. ORDER DR. MITHA LAL MEENA, A.M.: This appeal is filed by assessee against the order of Ld. Commissioner of Income Tax, Appeal Addl./JCIT (A) Kochi [hereinafter referred to as JCIT(A)] dated 11.03.2025 which is arising out of the assessment order passed u/s 143(3) r.w.s. 254 of the Income Tax Act, 1961 (in short “the Act”) passed by the ITO ward-2 Nagaur [hereinafter referred to as the (AO)] dated 23.12.2019 with respect to assessment year 2009-10 wherein the appellant has challenged the confirmation of addition of Rs. 4,00,000/- u/s 69 without appreciating the material facts on record.

2 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 2. There was a delay of 198 days in filing this appeal before the Tribunal by the appellant assessee. The assessee has filed a condonation petition explaining therein the reasons for the delay in filing the appeal as unintentional and occurred due to the genuine and reasonable causes beyond the control of the assessee. The Ld. AR explained that the appellant assessee being a Government servant, who has been transferred out of the Jaipur resulting in relocation of his office away from the city. Consequent to the transfer of the appellant, the coordination with his Chartered Accountant (C.A.) become difficult. Despite frequent attempts being made, the CA remained non-responsive and the necessary documents and information could not be filed in time. Resultantly, the out station transfer caused the genuine communication gap with the C.A. and consequently, the impugned order was passed ex-parte by Ld. JCIT(A) and there was delay in initiation of the appeal filing process. The Ld. AR further argued that the appellant assessee has been under the bona fide belief with his previous experiences of having filed his appeal before the Tribunal for the relevant assessment year to his consultants, he was under a bona fide and genuine belief that the present matter was also being duly processed and pursued by the same consultant in continuation of the earlier proceedings. The Ld. AR contended that

3 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 it was due to lack of proper communication from the tax consultant concerned, coupled with my relocation to another city during the relevant period. He has mistakenly presumed that all necessary procedural compliances, including filing of the present appeal, were being duly undertaken on my behalf. Subsequently, on verifying the status independently, appellant came to know that the appeal in fact had not been filed within the prescribed time. He immediately upon discovering his inadvertent delay, took prompt corrective action by appointing the present Chartered Accountant for filing the appeal to avoid recurrence of such procedural default. The AR pleaded that the delay had occurred neither due to deliberate negligence nor due to malafide intent, but solely on account of a bona fide misunderstanding and circumstances beyond the appellants immediate knowledge and control as otherwise he was not going to get any benefit by delaying of the appeal. In support he placed reliance on the Supreme Court judgment in the case of Collector, Land Acquisition Vs. Mst. Katiji & Ors. 167 ITR 471 (SC) where it has been categorically held that a liberal and justice oriented approach must be adopted while considering condonation of delay, and that refusal to condone delay may result in meritorious matters being thrown out at the threshold. The Hon’ble Court further held that substantial justice should

4 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 prevail over technical considerations. The AR further placed reliance on the judgment delivered by Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy (1998) 7 SCC 123 (SC) where it was held that length of delay is immaterial what is material is acceptability of the explanation, and unless delay is attributable to malafide intention or gross negligence, matters should ordinarily be decided on merits. The Ld. AR has humbly requested to condone the delay and admit the appeal for adjudication on merits. The Ld. DR though raised objection to the condonation of delay but she did not controvert the factual contention raised by the assessee.

5 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 see any deliberate negligence as malafide intention on the part of the assessee. Following the Apex Court judgment in the case of Collector, Land Acquisition Vs. Mst. Katiji & Ors. (supra) that the substantial justice should prevail over the technical considerations and that the bona fide reasons and explanations of the assessee, we condone the delay of 198 days and thus, appeal is admitted for adjudication on merits.

6 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 Scheme) at village Peepla Bharatsingh, (Jaisingpura-Muhana Road), Bhankrota, Tehsil- Sanganer, Jaipur developed by Shri Madan Mohan Gupta in financial year 2008-09 relevant to assessment year 2009-10 and that the name of the assessee Shri Baldevram Dhojak is appearing at Sr. No. 110 in the seized register Annexure AS Exhibit 3 seized from the office premises of Shri Madan Mohan Gupta. The AO has discussed that Shri Madan Mohan Gupta has accepted and honoured on- money receipt on sale of plots in “Revenue Residency” Scheme @ 2000 per Sq. yards and thus, the assessee Mr. Baldevram Dhojak has paid on-money of Rs. 4,00,000/- i.e. 200 Sq. yards * Rs. 2000/- to Shri Madan Mohan Gupta for the purchase of alleged land in “Revenue Residency” (Nizi Khatedar Residential Scheme) at village Peepla Bharatsingh, (Jaisingpura-Muhana Road), Bhankrota, Tehsil- Sanganer, Jaipur. Accordingly, the AO made an addition of Rs. 4,00,000/- to the return income of the assessee.

7 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 copy of the incriminating document alleged Exhibit 3 seized from the office premises of Shri Madan Mohan Gupta mentioning therein the payment by the appellant of on-money @ Rs. 2000/- per Sq. yards against plot no. 110 of the residential project “Revenue Residency” (Nizi Khatedar Residential Scheme) at village Peepla Bharatsingh, (Jaisingpura-Muhana Road), Bhankrota, Tehsil- Sanganer, Jaipur. The AR argued that the AO did not have any documentary evidence to prove that appellant had paid over and above the registered document and, therefore, the observation and finding arrived by the AO is not based on any documentary evidence and, therefore, the addition made by the AO is unsustainable in the eyes of law. The Ld. Counsel has pleaded that the addition made u/s 69C by the AO and so sustained by the Ld. JCIT(A) may be deleted, in light of the decision delivered by the coordinate Jodhpur Bench in ITA Nos. 334 & 342/Jodh/2018 in the case of Shri Rakesh Kumar Sharma Vs. ITO and Shri Devaram Suthar Vs. ITO.

8 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 the aforesaid plot based on the statement of Shri Madan Mohan Gupta recorded during the course of search action u/s 132(4) of the Act without any direct or indirect nexus to the incriminating material to establish that the assessee has made payment of any on-money over and above the amount mentioned in the registered document.

We have considered rival contentions and carefully gone through the orders of the authorities below. The issue is covered by the decision of Tribunal in the case of Shri Deva Ram Suthar in ITA No.342/Jodh/2018 wherein Tribunal observed as under:- 7. Rival contentions have been considered and record perused. deliberated pronouncements referred by lower authorities had also in judicial their respective orders as well as cited by learned AR and DR during the course of hearing before us in the context of factual matrix of the case. From the record I found that the assessee had purchased Plot No. 84 measuring 233.33 Sq.yards in the residential project "Revenue Residency" at Village Peepla Bharatsing. (Jaisinghpura-Muhana Road), Bhankrota, Tehsil-Sanganeer, Jaipur developed by Shri Madan Mohan Gupta in F.Y.2008-09 relevant to A.Y.2009-10 for total purchase consideration of Rs.2,68,330/- for plot and Rs.2,670/- for boundary total Rs.2,71,000/- (Rs.1150/- perSq. Yard). Thus, total investment by assessee is Rs.2,71,000/- out of this amount Rs. 1,90,000/- was paid through bank by taking personal loan and balance Rs.81,000/- was given in the financial year 2007-08.

9 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 8. In the assessment order, the AO alleged that the assessee has paid to the seller Shri Madan Mohan Gupta on money of Rs. 4,66,660/- for the purchase of plot no.84 having total area of 233.33 Sq. Yards 9. In reply to the same, assessee submitted as under:- a. “That the allegation of the Id.AO is baseless and imaginary and not maintainable. b. The Id. AO has relied upon the statement of Shri Madan Mohan Gupta recorded by the I.T. Authorities on 23.05.2013 during the course of search. But from reading the reply given by Shri Madan Mohan Gupta in the statement, it is clearly conveyed that Shri Madan Mohan Gupta sold the land for Rs. 1150/- per Sq. Yard. and the appellant paid as purchase consideration to the seller Madan Mohan Gupta a sum of Rs.2,71,000/-. c. That the entire fabric being woven against the appellant for treating the alleged payment of on money go around the statement of Shri Madan Mohan Gupta. is submitted that after thought statement carry no weight under the law and they are against the spirit of natural justice because they have no evidence value, d. That except the above statement of Shri Madan Mohan Gupta there was no supporting evidence available with the Id.AO which could corroborate that on money of Rs.4.66,660/- was paid by the appellant to Shri Madan Mohan Gupta. e. That while making the allegation the Ld.AO has relied upon the statement of Shri Madan Mohan Gupta course of search proceedings.” 10. Assessee also asked before the AO to provide opportunity for the cross examination of the person on whose statement addition was made. However, no such opportunity was provided neither by the AO nor by the CIT(A). Thus, without affording cross examination, the AO has made addition on the basis of statement of Shri Madan Mohan Gupta u/s 69 being unexplained investment and added the same in assessee's income. corroborative material available with the AO for making addition. As per However, there was no our considered view, not providing opportunity of cross examination amount to violation of principle of natural justice, a serious flaw which makes the order null and void. 11. For this purpose, reliance can be placed on the decision of Hon'ble Supreme Court in the case of Andaman Timber Industries 281 CTR 241 wherein it was held that not allowing assessee to cross-examine witnesses by adjudicating authority though statements of those witnesses were made as basis of impugned order, amounted in

10 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 serious flaw which made impugned order nullity as it amounted to violation of principles of natural justice. The precise observation of the Hon'ble Supreme Court was as under :- "Not allowing the appellant to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the appellant was adversely affected.” “It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the appellant disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the appellant. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the appellant. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. Appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross- examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were. in fact, sold to the said dealers/witnesses at The price which is mentioned in the price list itself could be the subject matter of cross- examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross- examination and make the remarks as mentioned above." 12. Reliance can also be placed on the on the decision of Bombay High Court in the case of Ashish international in ITA No.4299/Murn/2009 dated 22/02/2011, wherein Court held as under:- "The question raised in this appeal is. -whether the Tribunal justified in deleting the addition on account of bogus purchases allegedly made by the appellant from M/s. Thakkar Agro Industrial Chem Supplies P. Ltd. According to the revenue, the Director of Mis. Thakkar Agro Industrial Chem Supplies P. Ltd. in his statement had stated that there were no sales /purchases but the transactions were only accommodation bills involving any transactions. The Tribunal has recorded a finding of fact that the appellant had disputed the correctness of the above statement and admittedly the appellant was not given any opportunity to cross examine the concerned Director of M/s. Thakkar Agro Industrial Chem Supplies P. Ltd. who had made the above statement. The appellate authority had sought

11 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 remand report at that stage the genuineness of the statement has not been established by allowing cross examination of the person whose statement was relied upon by the revenue. In these circumstances, the decision of the Tribunal being based on the fact, no substantial question of law can be said to arise from the order of the Tribunal. The appeal is dismissed with no order as to costs ". 13. Reliance is also placed on the decision of Bombay High Court in the case of H.R.Mehta in its order dated 07/07/2016. The Hon'ble High Court held as under:- "The assessee is bound to be provided with the material used against him apart from being permitted to cross examine the deponents. The denial of such opportunity goes to root of the matter and strikes at the very foundation of the assessment order and renders it vulnerable." 14. Applying proposition of law laid down by Hon'ble Supreme Court and High Court as discussed above, I do not find any merit for the addition made by AO merely on the basis of statement, when there is no corroborative material with AO suggesting the alleged addition, without allowing assessee an opportunity to cross examine the person on whose statement addition was made. Accordingly, AO is directed to delete the addition so made. 15. Before parting with the matter, I observe that Ld. AR had placed on record order of ITAT Jaipur Bench in the case of Navrtattan Kothari vs. ACIT in ITA No.425/Jp/2017 in which proceedings initiated u/s.148 was quashed. However, the facts of this case are entirely distinguishable from the facts of instant case, in so far as in the case of Navrattan Kothari(supra) reopening of assessment after four years of assessment framed u/s.143(3) / 153 was quashed, whereas in the instant case, no assessment was framed u/s.143(3) and only return processed u/s.143(1). Accordingly, it is not going to help the assessee in any manner. 16. In the result appeal of assessee is allowed in terms indicated hereinabove." As the facts and circumstances in the instance case are same, wherein assessee has acquired plot of land in the very same locality and addition was made on the basis of statement of Shri Madan Mohan Gupta. Respectfully following the order of the Tribunal as quoted above, we do not find any justification for the addition so made.

12 ITA No. 1128/Jodh/2025 Asst. Year: 2009-10 11. On identical facts and peculiar circumstances (supra), we do not find any logistic reason and justification for the addition made by the AO. Accordingly, the AO is directed to delete the addition.

Order pronounced in the open court on 03/06/2026.

Sd/- Sd/- (SUDHIR PAREEK) (DR. MITHA LAL MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 03/06/2026. Nimisha Sr. PS True Copy Copies to : (1) The appellant. (2) The respondent. (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File BY ORDER,