SACHIN BHANDARI,JAIPUR vs. ITD WD 6(4), JPR, JAIPUR

Sub: Regarding acceptance of application for condonation of delay in case of Shri Sachin Bhandari having appeal No.

(PAN: ALZPB1178Q). Respected Members, With reference to above subject we request you that:-

1. 1. That appellant is an individual and filed an appeal before Hon'ble ITAT, Jaipur Bench on 06.03.2025 against the order dated 31.01.2024 passed by Ld. CIT (Appeals), NFAC (i.e. with a delay of 340 days). The appeal No. is ITA 354/JPR/2025.

2. That on 03.03.2025, appellant got a penalty notice u/s. 271AAC(1) of the Act. Then appellant contacted his consultant for reply of this penalty notice dated 03.03.2025.

Sachin Bhandari 3. That on that very same day the consultant of appellant informed appellant about the dismissal of the appeal before CIT (Appeals) on 31.01.2024.

3.1 Ld. AR of the argued that the reason for dismissal of appeal are also reasons for delay in filling the appeal as the same were persisting as the proceeding were online wherein the assessee was unaware about its status as he has on this issue appointed a counsel to attend the same. He prayed that the assessee should not suffer and when he was aware about the dismissal of the appeal immediately he filed the appeal and therefore, in the interest of the justice the delay be condoned. be aware about the filling of an appeal and has to remain vigilant.

Thus, the reasons advanced are nothing but taking shelter of his own mistake in taking care of the issue raised in the appeal and therefore, ld. DR submitted that the delay is not required to be condone.

3.3 We have heard the contentions of the parties and perused the materials available on record. The prayer by the assessee for condonation of delay of 340 days has merit because the assessee has engaged a counsel for filling the appeal which was well within the time as mentioned in the order of the ld. CIT(A) at top of page 2 of his order. Therefore, the claim of the revenue that the appellant assessee was not serious is not correct. The counsel did not represent the assessee and thereby it resulted in dismissal of appeal by ld. CIT(A). Considering that specific facts prevailing we concur with the submission of the assessee. Thus the delay of 340 days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause. proceed to decide the appeal of the assessee on its merits. The brief facts as culled out from the records is that the case of the assessee was selected for limited scrutiny on the reason of ‘Cash deposit during the demonetization’ for the assessment year under consideration. The notice u/s 143(2) of the Income Tax Act, 1961 was issued on 22.09.2018 which was got served upon the assessee through registered post dated 22.09.2019 and online ITBA portal and email id. The assessee filed his return of income declaring income of Rs. 4,27,360/- on 29.03.2018. The assessee declared the income under the head short term capital gain and income from other sources. During the year under consideration, the assessee deposited the cash of Rs. 10,46,400/- as per ITS details generated from the systems. During the assessment proceedings for the assessment year under consideration, various notices / letters were issued from time to time. The assessee was required to submit the information / documents for verification of the facts of the case.

Record reveals that the assessee deposited cash of Rs.5,45,400/- in the bank account No.50200004407902 maintained with HDFC Bank Ltd., Pandya Bhawan, Shop No.85-86, Johari Bazar, Jaipur and Rs.5,01,000/- in bank account no. 0001018720001400986 maintained with HDFC Bank Thiruvanmiyur, Chennai. During the course of assessment proceedings for the assessment year under consideration, the assessee was asked to explain the source of cash deposited by him in his bank accounts during the year under consideration but the assessee did not submit the relevant required document for verification of the same. The assessee failed to explain the above cash deposits of Rs. 5,45,400/- and Rs.5,01,000/- totaling to Rs.10,46,400/- during the year under consideration. Hence, the same was treated as unexplained income and added to the total income of the assessee as per provision of section 69A of the Act.

5. Aggrieved from that order of the ld. AO the assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below:

“8. Decision 8.1 Ground Nos. 1, 1.1 & 2 are interrelated to one another and therefore are being adjudicated together for the sake of convenience. 1. The ld. AO has erred on fact and law in making addition of Rs. 10,46,400/- by treating the cash deposit in the bank account during demonetization period as unexplained.

1.1 The Id. AO has erred on fact and law in making the above addition without considering the evidences filed. 2 The Ld. AO has erred on facts and in law in passing the above order without providing opportunity of being heard to the assessee.

8.2 I have perused the assessment order & material available on record. As regards with the above, it is seen that the AO has pointed out in the assessment order that during the year under consideration, the assessee deposited cash of Rs. 5,45,400/- in the bank account no. 50200004407902 maintained with HDFC Bank Ltd., Pandya Bhawan, Shop No. 85-86, Johari Bazar, Jaipur & Rs. 5,01,000/- in bank account no. 0001018720001400986 maintained with HDFC Bank Ltd., HDFC bank Credit Cards Division No.

8. Lattice Bridge Road, Thiruvanmiyur, Chennai. During assessment proceedings for the assessment year under consideration, the assessee was asked to explain the source of cash deposited by him in his bank accounts during the year under consideration but the assessee did not submit the relevant required document for verification of the same. The assessee failed to explain the above cash deposits of Rs. 5,45,400/- and Rs. 5,01,000/- totaling Rs. 10,46,400/- during the year under consideration. Hence, the same is treated as unexplained and added to the total income of the assessee. However, the show cause notice was issued to the assessee on 07/10/2019 requiring the documents related to the above matters. The above show cause notice was got served upon the assessee through registered post and online ITBA portal and email ID. In compliance to the above show cause notice, the assessee did not file his reply/submission. The assessee did not file the relevant required documents/ evidences for the verification of the source of the unexplained cash deposits made by him during the year under consideration. The assessee remained totally non-cooperative during the course of assessment proceedings for the assessment year under consideration. The assessee failed to explain the source of the same and the same is added to his total income under the provisions of section 69A of the Income Tax Act, 1961.

8.3 As regards the above, the appellant has not submitted any written submission or documentary evidence to defend his claim. However, in the ground of appeal, the appellant has raised one of his pleas that the addition of Rs. 10,46,400/- is bad in law and other he has claimed that AO has erred on fact and law in making the above addition without considering the evidences filed. In respect of second plea raised in ground no. 2, I find that during the assessment proceedings, numerous notices including a show cause notice were issued to the appellant. The details are as under-

S. No. Type of notice/letter Date notice/letter Date of hearing 1 Notice u/s 143(2) 22/09/2018 28/09/2018 2 Notice u/s 142(1) along with 30/04/2019 14/05/2019 query letter 3 Notice u/s 142(1) along with 02/09/2019 11/09/2019 query 4 Notice u/s 142(1) 09/09/2019 17/09/2019 5 Notice u/s 142(1) and show 07/10/2019 11/10/2019 cause notice Sachin Bhandari Further, the appellant however replied to notices issued u/s 142(1) but did not furnish required information and documents and did not even furnish required information and documents against show cause notice dated 07/10/2019. Even during appellate proceeding, the appellant failed to approach with documentary evidence despite sufficient opportunities were given to the appellant to substantiate his stand. In this situation, the plea of the appellant that the AO has erred on fact and law in making the above addition without considering the evidences filed cannot be accepted. In view of the above, I find that the appellant was given sufficient opportunity including a show cause notice to substantiate his claim but he failed to avail off them. Therefore, ground no. 2 is dismissed.

8.4 As regards with the first plea, raised in the ground no. 1 & 1.1, the appellant has not uploaded any written submission or documents. The section 114(g) of Indian Evidence Act 1972, lays a presumption that evidence which could be and is not produced when, if produced, be unfavourable to the person who withholds it. The burden of proof lies on the appellant to prove the facts. If an appellant fails to disprove or rebut with cogent evidence such facts, no interference is required. In this case, there has no compliance to the statutory notices issued even though sufficient time had been made available to the appellant, which entails the conclusion that the appellant has no evidence or say or explanation regarding the source of cash deposits in his bank accounts. When the appellant is non- cooperative, it can naturally be concluded that the appellant did not want to adduce evidence as it would expose falsity and non-genuineness. Further, I find that the appellant has deposited Cash in his bank accounts, appearing in the bank accounts maintained in HDFC Bank Ltd. but source of such credits is not explained by producing adequate documentary evidences despite of calling them for production of information and documents for verification regarding source of such cash deposits during demonetation in the year of question. Further, the nature and source of such Deposits made in the bank accounts were not at all explained as the same was not explained. Furthermore, for invoking deeming provisions under Section 69A of the act, there should be clearly identifiable asset or unexplained Money. It is amply proved beyond doubt that the appellant has deposited Cash appearing in bank accounts i.e. HDFC Bank Ltd. stands unexplained, and the sum of Rs 10,46,400/- are identifiable unexplained assets. All three limbs of Section 69A of the Act stands qualified in the case of the appellant, i.e. (a) the appellant was found to be owner of the Money (b) such Money was not recorded in the books of accounts, and (c) its nature and source is not identifiable.

8.5 The Hon'ble Supreme Court in the case of Chuharmal Vs CIT (1988) 172 ITR 250 while affirming the view of the Madhya Pradesh High Court has held that 'the expression 'INCOME as used in Section 69A of the Act, 1961 had a wide meaning which meant anything which came in or resulted in gain and on this basis, concluded that the assessee had income which he had invested in purchasing article and he could be held to be owner and the Also, the Hon'ble Supreme Court in the case of Smt Srilekha Banerjee and others Vs CIT. Bihar & Orissa, reported in 1964 AIR 697, dated 27/03/1963, the Hon'ble Court held that the source of money not having been satisfactorily proved, the Department was justified in holding it to be assessable income of the assessee from some undisclosed source. Following the ratio of the judgment of Hon'ble Supreme Court, in the instant case, the appellant deposited Cash in his bank account which resulted in gain and on the basis can be concluded that the appellant had income to the extent of Credit entries appearing in bank accounts and it could be held to be the owner and the Money at its credit could be deemed to be its income by virtue of Section 69A of the Act. Hence, in the facts of this case a legitimate inference can be drawn that the appellant had income which he had deposited in Bank Accounts and, as such, that Income was subject to tax

8.6 It is well settled law that the burden lies over the appellant to prove the facts by submitting documentary evidences. But from the above, it is clear that the appellant has totally failed to substantiate his claim by not producing required information and documents. Even at the time of appellate proceeding, the appellant did not try to disapprove the findings of the AO. It is also imperative to mention over here that even in the form no. 35, the appellant has not given any contention in support of his claim. Hence, it seems that the appellant has nothing to offer before this appellate authority to substantiate his claim or disprove the findings of the assessing officer. If he had anything to produce in support of his claim, he would have produced the same before this appellate authority during appellate proceedings. In the absence of proof in this regard and in terms of the provisions of section 101 and 106 of the Indian Evidence Act, 1872 which casts the onus of proof on the person who asserts something, the contention of the appellant is rejected. In view of the above facts, I am of the opinion that the findings of assessing officer in holding that the assessee had unexplained money of Rs. 10,46,400/- and making addition under section 69A of the Act are justified. Hence, an addition of Rs. 10,46,400/- is confirmed. Ground no. 1 & 1.1 are dismissed.

9. Ground no. 3 is general in nature and therefore it does not require any specific adjudication.

the ld. CIT(A), the assessee has preferred the present appeal before this Tribunal challenging the addition of Rs. 10,46,400/- made by the ld. AO.

The ld. AR of the assessee submitted that the assessee has filed the return of income wherein the source of deposit of cash was already considered and thereby making the separate addition is not warranted. Ld. CIT(A) did not considered this aspect of the assessee as the assessee did not place any record on record and therefore, ld. CIT(A) confirmed the addition.

Before us the ld. AR of the assessee submitted that the assessee is the proprietor of M/s. Anytime Tours and Travels. The assessee filed the ITR wherein the source of cash deposit is considered. But the assessee could not place on record the required proof and for that he prayed to grant one more chance to place the correct facts on record.

7. The ld. DR is heard who relied on the findings of the lower authorities and more particularly advanced the similar contentions as stated in the order of the ld. CIT(A). Ld. DR also stated that the assessee was given a specific show cause notice wherein he did not placed on record any evidence to support the source of cash deposit when the matter carried before the ld. CIT(A) there also assessee could not placed on record any opportunity.

In the result, the appeal filed by the assessee is allowed for statistical purposes.

Order pronounced in the open court on 25/06/2025. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 25/06/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Sachin Bhandari, Jaipur izR;FkhZ@ The Respondent- ITO, Ward 6(4), Jaipur 2. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZ QkbZy@ Guard File (ITA No. 354/JP/2025) 6. vkns'kkuqlkj@ By order,

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