MUNNI,NOIDA vs. ITO WARD 1(4), GHAZIABAD

Although a number of grounds have been raised by the assessee, these all relate to the order of the CIT(A) in dismissing the appeal filed by the assessee as barred by limitation and thereby sustaining the addition of Rs.39,70,500/- made by the AO u/s 69A of the IT Act.

Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal. 5. The ld. Counsel for the assessee submitted that the assessee is a farmer having income from agricultural operations only and there is no other sources of income liable to tax under Income-tax Act and, therefore, no return of income was filed for the relevant assessment year. Since the cash deposit was out of sale proceeds of ancestral agricultural land in the village and the sale deed was not readily available with the assessee at the relevant time, the same could not be produced before the AO. He submitted that the assessee is an illiterate farmer and is not aware of the intricacies of the law. He submitted that the AO completed the assessment, but, the assessment order and notice of demand was never served on the assessee. These documents had to be obtained on receipt of notice u/s 2(21) and after obtaining the certified copy from the AO, the assessee filed the appeal before the CIT(A) within 30 days from the date of certified copy. He submitted that the delay in the instant case in not filing the appeal in time is not

I have considered the rival arguments made by both the sides and perused the record. I find, due to non-substantiation of the deposit of Rs.39,70,500/- in the savings bank account maintained by the assessee, the AO made addition of the same and the order passed u/s 144/147 of the IT Act. I find, the ld.CIT(A) dismissed the appeal treating the same as nonest and defective due to delay in filing of the appeal by more than two years and the assessee and for the reason that the assessee has not acted with reasonable diligence in prosecuting the appeal. I find, the Hon’ble Supreme Court in the case of Collector Land Acquisition vs. Mst. Katiji & Ors. (supra), while condoning the delay, laid down the following principles:- “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the 5

I am of the considered opinion that the ld.CIT(A) should not have dismissed the appeal on account of delay in filing of the appeal. However, considering the fact that the assessment order was passed u/s 144 of the IT act and the ld. Counsel for the assessee is now giving an undertaking that the assessee will appear before the AO and cooperate in completion of the assessment and produce the necessary details for completion of the assessment, I deem it proper to restore the issue to the file of the AO with a direction to grant one last opportunity to the assessee to substantiate her case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the AO and substantiate her case without seeking any adjournment under any pretext failing which the AO is at liberty to pass appropriate order as per law. I hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.