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Facts
The assessee filed an appeal with a delay of 147 days, citing medical reasons and issues with the previous AR. The Assessing Officer (AO) had passed an ex-parte order under Section 144, making an addition for unverified cash deposits. The CIT(A) had dismissed the appeal for the first appellate year due to the delay and also confirmed the AO's addition.
Held
The Tribunal condoned the delay of 147 days in filing the appeal and remanded the matter back to the CIT(A) for adjudication on merits, with directions to provide an opportunity of being heard and consider new evidence.
Key Issues
Whether the delay in filing the appeal should be condoned and whether the matter should be remanded to the CIT(A) for fresh adjudication on merits.
Sections Cited
148, 144, 250, 46A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “SMC” BENCH KOLKATA
Sandeep Prasad, Near Gurudwara, Imlitala, Panagarh Bazar, Paschim Bardhaman - 713148 [PAN: AYSPP3852B] .....................…...…………….... Appellant vs. Income Tax Officer, Durgapur Office of the ITO, Ward-2(3), Aayakar Bhawan, City Centre, Durgapur, Paschim Bardhaman - 713216 ...........…..….................... Respondent Appearances by: Assessee represented by : Somnath Porey, AR Department represented by : Gautam Patra, Addl. CIT (DR) Date of concluding the hearing : 19.02.2025 Date of pronouncing the order : 25.02.2025 O R D E R
PER SANJAY AWASTHI, ACCOUNTANT MEMBER:
In this case, the ITAT Registry has informed of a delay in filing of appeal amounting to 148 days. The assessee has filed an affidavit for requesting condonation of the same as under:
“Most respectfully, the assessee submits as under:
1. 1. Sandeep Prasad, aged about 34 years, son of Jageshwar Prasad identified by PAN AYSPP3852B at present residing at Panagarh Bazar, Behind Gurudwara, Imlitala, Panagarh, Paschim Bardhaman, 713148, W.B. do solemnly affirm and state on oath as under.
2. That I received an Intimation for the assessment year 2010-11 under section 148 of the Income Tax Act, 1961 on dated 27/03/2017 3. That as per the said intimation dated 06/12/2017 the Income Tax Officer passed an assessment order, being aggrieved by the said order I had filed an appeal before Sandeep Prasad the CIT(A), but the appeal was dismissed by the CIT(A) and the learned counsel of Income Tax Act, 1961 dated 29/11/2023.
4. That I was advised by my legal consultant that the intimation is factually beyond of date, for that I need to file an appeal before the Hon'ble ITAT for relief but the appeal has already become barred by time limitation because I am suffering from brain defect since 15/01/2024 to 28/05/2024. (copy of medical certificate enclosed) 5. That the time for filing of the appeal before ITAT was to expire on 29/01/2024.
Thereafter I contacted my legal consultant and gave him all the necessary documents so that appeal can be filed and there is a delay of 147 days. PRAYER It is therefore, most respectfully prayed that the delay of 147 days delay in filing appeal before the Hon'ble Appellate Tribunal may be condoned so that justice may be done. VERIFICATION 1. Sandeep Prasad, the appellant do hereby verify that the contents of the above are true to the best of my knowledge and belief.” 1.1 Considering the reasons advanced through the said petition, the delay is hereby condoned and this appeal is admitted for adjudication.
The present appeal arises from order passed u/s 250 of the Income Tax Act, 1961 [hereafter ‘the Act] by the Ld. Commissioner of Income Tax (Appeals), dated 29.11.2023.
2.1 In this case, the Ld. AO is seen to have passed an exparte order u/s 144 of the Act and added Rs. 31,16,000/- as allegedly unverified cash deposits in bank account.
2.2 Aggrieved with this addition, the assessee approached the Ld. CIT(A), where also he could not succeed as there also, he did not respond to notices fixing the dates for hearings. Thus, the Ld. CIT(A) confirmed the addition made by the Ld. AO mainly on the ground that the 5 months delay in filing of first appeal was not condoned.
Further aggrieved, the assessee has approached the ITAT with the following grounds of appeal:
Sandeep Prasad “1. The assessee had received a notice u/s 148 of the Income Tax Act, 1961, in form of letter [Ref No: ITBA/AST/S/148/2016-17/1003580814(1) dated 27.03.2017) through speed post (ref no. EW443995257IN) on 13.04.2017 and further a notice was received on 14.09.2017. Hence Assessee submitted a reply to the learned A.O. in form of letter dated 20.09.2017 (which is received by learned A.O. on 22.11.2017, as per his reply letter) that why notice u/s 148 is not a time barred notice. The learned A.O. replied (via Letter ref no. ITOW-2(3)/DGP/Scrutiny/2017- 2018/634 dated 05.12.2017, which was received by assessee on 15.12.2017) that notice was issued on 28.03.2017 hence it was not time barred but service of notice to the assessee was on 13.04.2017. Further, the learned A.O. has passed the best judgement order on 06.12.2017 (just after the notice issued date on 05.12.2017) without giving any opportunity of being heard, the learned A.O. has passed the order without following the SoP.
2. The learned A.O. has erred in calculating income as entire cash deposit in bank account as income of assessee without applying FAIR and REASONABLE to estimate the Net Income. The Learned A.O has passed order arbitrarily.
3. The learned A.O. has erred in assessing income only in the name of assessee. However, the cash deposited in bank account is a joint bank account with Rajiv Ranjan Kumar.
For that other Residual grounds may be taken at the time of hearing.” 3.1 Before us, the Ld. AR stated that due to carelessness on the part of the then AR of the assessee and the ill-health of the assessee, proper compliance could not be made before the authorities below. The Ld. AR requested for another chance to prove his case before either of the authorities below.
3.2 The Ld. DR fairly stated that he would have no objection in case this matter was to be remanded back to the Ld. CIT(A).
4. We have considered the documents before us and the averments of Ld. DR/AR. In the interest of substantive justice, we deem it fit to remand this matter back to the file of Ld. CIT(A), with the direction to condone the delay and adjudicate on the merit of the case. Here the assessee needs to be vigilant about filing details and documents before the Ld. CIT(A) for enabling him to appraise the evidence afresh. The Ld. CIT(A) would provide adequate opportunity of being heard and also consider admitting new evidence, if filed by the assessee, within the provisions of Rule 46A of the IT Rules.