RAJA SHRI KRISHNA DUTT DIEEGRI COLLEGE,JAUNPUR vs. NATIONAL FACELESS ASSESSMENT CENTRE, DELHI

At the outset, it is observed that the appeal is delayed by 165 days. The assessee has filed a condonation petition in which it has been submitted that he was advised by his Counsel not to file an appeal under section 253 of the Act but rather to file a rectification application under section 154 of the Act. It was later, when the assessee came into contact with an Advocate at Jaunpur, that he was advised to file an appeal. An affidavit was attached to the said condonation petition sworn by the said Counsel Shri Dev Pratap Yadav, wherein the Counsel admitted advising the

The assessee submitted that since the delay was on account of advising of his consultant the same deserves to be considered a “sufficient cause” for condoning the delay as per principle laid down by the Hon'ble Supreme Court in various cases including that of Concord of India Insurance Company Ltd. Vs. Smt. Nirmala Devi & Ors Reported in 118 ITR 507 (SC). Reliance was also placed on the decisions of the Hon'ble Supreme Court in N. Balakrishna Vs. Krishnamurthy reported in AIR 1998 (SC) 3222 and the Cochin Bench decision of the Tribunal in the case of Midas Polymer Compounds Pvt. Ltd. dated 25.06.2018, wherein the Tribunal had condoned the delay of 2819 days on account of the mistake of the Counsel. Finally citing the decisions of the ITAT in People Education & Economic Development Society Vs/ Income Tax Officer reported in 100 ITD 87 (TM) (Chen), and the decision of the Hon'ble Supreme Court in the case of Motilal Padampat Sugar Mills Company Ltd. Vs. State of Uttar Pradesh reported in 118 ITR 326, the assessee prayed for condonation of delay. It was further submitted that the Accountant who looked after the email access and login credentials of the income tax portal was preoccupied with a medical emergency in his family member, for which certificates were attached, and as a result the assessee was unaware of the passing of the order. Accordingly, it was prayed that the delay in filing of the appeal may kindly be condoned.

The facts of the case are that the Assessing Officer received information that the assessee, which has not filed a return of income for AY 2019-20, had Bank Account in the Bank of Baroda wherein the total cash deposit of Rs. 1,89,80,891/- had been made. Furthermore payments had been received after deduction of tax under section 194C and 194J of the Act. Accordingly, after issuing notices under section 148A(b) and passing of order under section 148A(d), the Assessing Officer issued notice under section 148 of the Act. The learned Assessing Officer records that he issued several notices to the assessee, but the same were not responded to. A show-cause notice that was subsequently issued was also met with an adjournment application. Therefore the learned Assessing Officer decided to complete the assessment in a bast judgment manner and he added back the sum of Rs. 1,89,80,891/- under section 69A of the Act. He also made an addition of Rs. 1,55,417/- on account of receipts under section 194C and 194J of the Act.

Aggrieved with the said assessment order, the assessee filed an appeal before the learned CIT(A)/NFAC. Before the learned CIT(A), it was agitated that the assessee was an Educational Institution which was covered under section 10(23C) (iiiab), which was wholly and substantially financed by the State Government. However, the learned CIT(A) held that the assessee had not produced any such certificate to show or prove that it qualified for the benefit of section 10(23C)(iiiab) of the Act. He further held that all such assumptions were subject to a claim being made by the assessee by means of filing of a return and the assessee was non-filer. He 4

The assessee is aggrieved with this order passed by the learned CIT(A)/NFAC and has accordingly come before us. On the appointed date of hearing, nobody was present on behalf of the assessee. The learned Departmental Representative also filed an application for adjournment. However, on going through the records, it is observed that the assessee has claimed to be an Educational Institution wholly and substantially financed by Government, which is eligible for exemption under section 10(23C)(iiiab) of the Act. On account of the non-compliance before the learned Assessing Officer and failure to furnish the necessary evidences in support of this claim, before the learned CIT(A) this issue of the assessee’s income being exempt from tax has not been considered by the lower authorities. After considering the facts of the case, we therefore believe it to be interest of justice to restore the matter back to the file of the learned Assessing Officer for fresh consideration. The assessee is directed to furnish all the necessary details before the learned Assessing Officer to demonstrate that its income is exempt under section 10(23C)(iiiab) and that the deposits in its bank account are duly explained by its books and audited accounts. We further caution the assessee that failure to make due compliance before the Assessing Officer could be construed as an inability

In the result, the appeal of the assessee is allowed for statistical purposes.