RINKU PRASAD PANDEY,BHILAI NAGAR vs. INCOME TAX OFFICER, WARD-1(3), BHILAI, BHILAI NAGAR

The assessee has challenged the non-condonation of delay of 125 days in filing the 1st appeal and consequential dismissal of the appeal being inadmissible. Further, the assessee has raised the legal issue of reopening of assessment and merit of addition of Rs.82,00,000 under section 69A rws 115BBE of the Act. 1

The assessee, an employee of Dinshaw Dairy Food Ltd., has not filed any Income Tax Return (‘ITR’) of the relevant year. However, as per the assessment order, the assessee received accommodation entry of Rs.82,00,000/- in his proprietary concern; namely, M/s R. R. Enterprises during the relevant year. Since, the said transaction of Rs.82,00,000/- in the proprietary concern was not explained during the course of proceedings under section 148A of the Act; therefore, the case of the assessee was reopened under section 148 of the Act. The assessee, in response to the notice under section 148 of the Act, filed his ITR on 31.05.2021 declaring income of Rs.2,40,891/-. During the course of assessment proceedings, the Ld. Assessing Officer (‘AO’) show-caused the assesse to explain the source and genuineness of deposits of Rs.82,00,000/- in his proprietary concern. However, the assessee did not ensure any compliance; therefore, the Ld. AO taxed the sum of Rs.82,00,000/- under section 69A r.w.s. 115BBE of the Act. Aggrieved, the assessee filed belated appeal (125 days’ delay) before the Ld. CIT(A), who did not condone the delay and dismissed the appeal as inadmissible.

The assessee was not represented by anyone. Therefore, we heard Shri Madan Mohan Meena, Ld. Sr. DR, who argued the case vehemently and prayed for dismissal of the appeal. We perused the material available on the record. The Ld. CIT(A), observing as under, rejected the delay condonation petition of the assessee as he was not satisfied with the sufficiency of cause for belated appeal and thus, he did not admit the appeal:

We have taken note of the reasoning of Ld. CIT(A) while rejecting the delay condonation petition of the assessee. It is evident from the said reasoning that the assessee has not made available the name of erstwhile Counsel, the content/copy of the advice of the said Counsel, etc. Further, the Ld. CIT(A) has narrated that the assessee’s condonation petition did not answer to certain queries mentioned in para 5.2 and 5.3 of the impugned order.

After thoughtful consideration of the impugned order, we are unable to infer that whether the Ld. CIT(A) has provided any specific opportunity of being heard to the assessee before non-admitting the appeal on the issue of limitation. The right of appeal is a valuable right and unless expressly taken away or abandoned, it could not be held that the appellant had abandoned or lost such right by implication [Indian Aluminium Co Ltd. Vs. CIT 162 ITR 788 (Cal.)]. The right to appeal is not merely a matter of procedure. It is a substantive right. The Act read with the Notification F. No. S.O. 3296 (E), dated 25-9-2020 put specific restrictions and

It is evident from the statement of facts annexed with Form-36 that the assessee had categorically denied having any concern in the name & style of M/s R. R. Enterprises during the relevant year. However, the Ld. AO had not brought any material on the record to establish that the assessee was proprietor of M/s R. R. Enterprises during the relevant year. Further, the assessee has stated that the Ld. AO had not provided the copy of the bank account of M/s R. R. Enterprises where the sum of Rs.82,00,000/- got credited during the relevant year. It is also evident from the statement of facts that the assessee had commenced the business in his proprietary concern M/s R. R. Enterprises, after VAT registration on 10.04.2017, i.e. in FY 2017-18 and not prior to that. The assessment order does not contradict the above submission of the assessee filed during the course of assessment proceedings.

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