BOSERAJ SIVARAMAN,VIRUDHUNAGAR vs. ITO, WARD-3,, VIRUDHUNAGAR

The Assessee raised the following grounds of appeal :

Briefly stated the facts of the case are that the appellant is an Individual. No regular return of income was filed under the provisions of section 139(1) of the Act for the Assessment Year 2017-18. Based on the information that the appellant had made cash deposit of Rs.6,52,82,759/- in the bank account maintained with the bank and also made cash withdrawal of Rs.1,08,63,560/-, the Assessing Officer formed an opinion that income got escaped assessment from tax. Accordingly, a notice u/s.148 of the Act was issued to the appellant on 28.03.2021 calling upon the appellant to file the return of income. The appellant neither complied with the notice u/s.148 of the Act nor furnished the information called-for u/s.142(1) of the Income Tax Act, 1961. In the circumstances, the National Faceless Assessment Centre (hereinafter called ‘AO’) had proceeded with framing of the assessment order vide order dated 17.03.2022 passed u/147 r.w.s 144B of the Act at a total income of Rs.6,52,82,759/-. While doing so, the Assessing Officer brought to tax entire cash deposits in the bank account as unexplained money of the appellant as the appellant had failed to offer any explanation in support of the source of the said cash deposits.

Being aggrieved by the above assessment order, the appellant preferred an appeal before ld.CIT(A) with a delay of 136 days. The appellant also filed a petition seeking the condonation of delay by stating that the delay had occurred on account of negligence of the Chartered Accountant. However, Learned Commissioner of Income Tax(Appeal) had refused to condone the delay by placing reliance on certain judicial precedents.

Being aggrieved by the order of ld.CIT(A), the appellant is in appeal before us in the present appeal. At the outset, we find that there is a delay in presenting appeal before this Tribunal by 269 days. The appellant had filed petition seeking condonation of delay on the ground that he was not aware of the order passed by ld.CIT(A) u/s.250 of the Act. It is only after the attachment of bank account, the appellant came to know the order passed by the ld.CIT(A). Immediately, thereafter the appellant took steps to file the appeal before the ld.CIT(A). The averments made in the affidavit remain uncontroverted by the learned Sr.DR. In M.Kalappa Sethi Vs. M.V.Laxmi Narain Rao AIR 1973 SC 627, it was held that an uncontroverted affidavit shall be taken as an affidavit on fact. The averments made in the Affidavit seeking the condonation of delay in filing appeal before the ld.CIT(A), remain uncontroverted by the learned ld.CIT(A). In the absence of any material to the contrary, the averments made in the affidavit cannot be brushed aside. Therefore, we condone the delay and admit the appeal for adjudication merits.

We heard rival submissions and perused the material available on record. The ld.Counsel submits that the bank account of the appellant was misused by one Mr.Keshavraj who misused his Aadhar Card and PAN Card without his knowledge opened a current account and he also filed Police Complaint before the Superintendent of Police, Virudhurnagar. He further submitted that before the Assessing Officer the appellant had reiterated that the bank account was misused by third-party, therefore, the cash deposits made in the said account does not belong to him. However, the Assessing Officer without considering the explanation offered by the appellant passed the ex-parte assessment order. Even in appeal before the Learned Commissioner of Income Tax(Appeal) also, the ld.CIT(A) dismissed the appeal in limine on the grounds of delay. Therefore, he further submits that the ld.CIT(A) ought to have condoned the delay in presenting the appeal before him.

On the other hand, ld.Sr.DR vehemently opposed the above submissions.

The issue that arises for our consideration is whether the ld.CIT(A) was justified in dismissing the appeal on the grounds of delay by refusing the condonation of delay. Admittedly, there is a delay of 136 days in presenting the appeal before the ld.CIT(A). The appellant filed a petition seeking the condonation of delay on the ground that the delay in filing of appeal occurred for the reasons that Chartered Accountant of the appellant was negligent and only when the bank account of the appellant was attached, the appellant came to know the order passed by the ld.CIT(A), as a result, appellant was not able to file the appeal within the stipulated time. However, ld.CIT(A) had refused to condone the delay by stating that no sufficient cause was shown for the delay. On careful perusal of the findings of ld.CIT(A), it would be clear that the ld.CIT(A) had not given findings as to how the explanation offered by the appellant for delay does not constitute a reasonable cause. The averments made in the affidavit remain uncontroverted by the learned Sr.DR.

In M.Kalappa Sethi Vs. M.V.Laxmi Narain Rao AIR 1973 SC 627, it was held that an uncontroverted affidavit shall be taken as an affidavit on fact. The averments made in the Affidavit seeking the condonation of delay in filing appeal before the ld.CIT(A), remain uncontroverted by the learned ld.CIT(A). In the absence of any material to the contrary, the averments made in the affidavit cannot be brushed aside. Therefore, we are of considered opinion that the ld.CIT(A) ought to have condoned the delay in filing the appeal and admitted the appeal for adjudication on merits. In the circumstances, we direct ld.CIT(A) to admit the appeal for adjudication on merits.

In the result, appeal of the assessee is partly allowed for statistical purpose. Order pronounced in the open court on 21st May, 2026.