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Before: Shri V. Durga Rao & Shri G. Manjunatha
आयकर अपीलीय अिधकरण, ’ए’ �ायपीठ, चे�ई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI �ी वी दुगा� राव �ाियक सद� एवं �ी जी. मंजुनाथा, लेखा सद� के सम� Before Shri V. Durga Rao, Judicial Member & Shri G. Manjunatha, Accountant Member आयकर अपील सं./ I.T.A. Nos.654 & 655/Chny/2019 िनधा�रण वष�/Assessment Years: 2010-11 & 2011-12 Shri Mohamed Hussain Mohamed Vs. The Income Tax Officer, Harissi, 10, Nethaji Nagar, IInd Street Non Corporate Ward 5(5), Tondiarpet, Chennai 600 081. Chennai 600 006. [PAN:APEPM2204H] (Petitioner by) (��थ�/Respondent) अपीलाथ� की ओर से / Petitioner by : Shri N. Arjunraj, CA for Shri S. Sridhar, Advocate ��थ� की ओर से/Respondent by : Shri AR V Sreenivasan, Addl. CIT सुनवाई की तारीख/ Date of hearing : 30.11.2022 घोषणा की तारीख /Date of Pronouncement : 14.12.2022 आदेश /O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: Both the appeals filed by the assessee are directed against different orders of the ld. Commissioner of Income Tax (Appeals) 10, Chennai both dated 01.03.2018 relevant to the assessment years 2010- 11 and 2011-12.
Both the appeals filed by the assessee are time barred by 277 days delay in filing the appeals before the Tribunal. By filing condonation petition in support of an affidavit, the assessee has explained as under:
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That I, the above named petitioner, am well conversant with the facts stated below. That the Appellate Order u/s 250(6) of the Income Tax Act, 1961, dated 01.03.2018 passed by the Ld. CIT (Appeals) was received on 11.04.2018. That the time for filing of the appeal within 60 days of the receipt of the Appellate Order before the Hon. ITAT expired on 11 June 2018. Hence a delay of 276 days has been caused due to the mental agony already created by the Order of the Assessing Officer raising a huge demand of Rs.22,65,630/- and confirmed later by the order of the Ld. CIT (Appeals). I once again submit that I am a very poor man and illiterate surviving on a meagre income of Rs.8000/- per month as salary. I was during the period requesting my employer to help me out of the situation caused by him. Later time was also taken in finding out a suitable counsel for appointing as my authorized representative. The delay was caused mainly due to my inability to pay the filing fee of Rs.10,000/-. All the above factors contributed to the delay in filing the appeal within the stipulated time. That the memo of appeal is being filed today, 14 March, 2019. In view of the above, I request the Hon. ITAT, Chennai to kindly grant condonation for the delay of 276 days caused due to above factors beyond my control and admit the appeal for adjudication on merits. The ld. DR has not seriously object to the above submissions of the assessee. In view of the above submissions, we are of the considered opinion that the assessee was prevented by reasonable cause for delay in filing the appeals before the Tribunal. Accordingly, we condone the delay in filing the appeals and admit the appeals for adjudication.
Brief fact of the case are that the case was reopened for the assessment year 2010-11 manually for the aggregation of cash deposits of ₹.1,17,46,900/- made in SB account with M/s. ICICI Bank Ltd. during
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the financial year 2009-10 as per AIR information. Notice under section 148 of the Income Tax Act, 1961 [“Act” in short] was issued on the assessee on 31.07.2014. Notice under section 142(1) of the Act was also issued on 15.05.2015. The assessee has not responded to various notices issued by the Assessing Officer. The Assessing Officer called for the bank statement from ICICI Bank and verified. Summon issued under section 131 of the Act to the assessee on 24.02.2016 and in response to the summon, the assessee appeared and recorded assessee’s statement and assessee’s answer given to question No. 8 is reproduced as under: “the assessee was working in a shop at Burma Bazaar for a salary of ₹.8,000/- p.m. during the year 2009-10 and the shop owner only made the entire cash transactions by using the assessee’s ATM Card and getting the signature in blank cheques. Assessee did not know anything about the cash transactions made during the year 2009-10. Since assessee was drawing a salary of ₹.8,000/- p.m. in the shop, he has not filed any return of income for the Asst. Year 2010-11”. By rejecting the above statement and considering various judgements, the Assessing Officer proceeded and concluded best judgement assessment under section 144 r.w.s. 147 of the Act dated 08.03.2016 assessing total income at ₹.1,18,42,900/- by making addition under section 69A of the Act of ₹.1,17,46,900/- as unexplained income from other sources. On an identical facts, similar addition was made under section 69A of the Act at ₹.44,48,325/- for the assessment year 2011-12. On appeal, the ld. CIT(A) dismissed both the appeals by rejecting the
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condonation petition for the delay of 123 days and 126 days in filing the appeal for the assessment years 2010-11 and 2011-12 respectively.
On being aggrieved, the assessee is in appeal before the Tribunal. The ld. Counsel for the assessee has reiterated the submissions as made before the ld. CIT(A) and vehemently argued that the assessee, being an illiterate, poor and layman fetching just ₹.8000/- for survival has been awarded towards payment of huge tax of ₹.68,61,250/- for the assessment year 2010-11 and ₹.22,65,630/- for the assessment year 2011-12 do not have sufficient money to engage a counsel to represent his case before the ld. CIT(A) in time and thereby, the delay has been caused and prayed for condoning the delay of filing appeal before the ld. CIT(A) and delete the addition for both the assessment years.
On the other hand, the ld. DR supported the orders of authorities below.
We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. So far as condonation of delay in filing the appeals before the ld. CIT(A), the assessee has furnished reasons for the delay and prayed for condonation of delay and admit the appeals for adjudication on merits. However, on
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perusal of the appellate order, we find that in para 6, the ld. CIT(A) has concluded his observations in single line viz., “6. Delay in filing the appeal not condoned”. The ld. CIT(A) has not furnished any reason for rejecting the petition for condonation of delay in filing the appeal before the ld. CIT(A) for both the assessment years. Under the above facts and circumstances, we are of the considered opinion that the assessee was prevented by reasonable cause for the delay in filing the appeal before the ld. CIT(A) and accordingly, we condone the delay in filing the appeals before the ld. CIT(A) for both the assessment years 2010-11 and 2011- 12.
6.1 On merits, the ld. CIT(A) has not adjudicated the issue for both the assessment years under appeal. On perusal of the assessment order, we find that the Assessing Officer has rejected the statement given by the assessee, which is reproduced hereinabove. However, the Assessing Officer has not summoned the shop owner, who was stated to be operated assessee’s ATM Card and made bank transactions in the name of the assessee. Under the above facts and circumstances, we remit the matter back to the file of the Assessing Officer to verify as to whether the assessee’s salary has been credited into his bank account and summon the shop owner to ascertain the deposits belongs to the shop owner or
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not, record his statement, allow to cross examine the assessee, if required, and thereafter, decide the issue in accordance with law after allowing sufficient opportunity of being heard to the assessee.
In the result, both the appeals filed by the assessee are allowed for statistical purposes. Order pronounced on 14th December, 2022 at Chennai.
Sd/- Sd/- (G. MANJUNATHA) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER Chennai, Dated, 14.12.2022 Vm/- आदेश की �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant, 2.��थ�/ Respondent, 3. आयकर आयु� (अपील)/CIT(A), 4. आयकर आयु�/CIT, 5. िवभागीय �ितिनिध/DR & 6. गाड� फाईल/GF.