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Facts
The assessee challenged an ex-parte order passed by the CIT(A) for AY 2017-18. The assessee attributed the delay in filing the appeal before the Tribunal to the miscommunication by their former counsel. The original assessment order was passed u/s 143(3) of the Income Tax Act, 1961.
Held
The Tribunal noted the delay of 326 days in filing the appeal was due to the assessee's previous counsel. Citing Supreme Court decisions, the Tribunal condoned the delay and decided to remand the matter back to the CIT(A) for fresh adjudication on merits after affording due opportunity to the assessee.
Key Issues
Whether the delay in filing the appeal before the Tribunal was justifiable and whether the CIT(A) order was passed without providing adequate opportunity of being heard, necessitating a remand for fresh adjudication on merits.
Sections Cited
143(3), 69A, 271AAC(1)
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 73/JPR/2025
fu/kZkj.k o"kZ@Assessment Years : 2017-18 Dev Group cuke The ITO, Harsora Road, Bansur, Vs. Ward, Behror. Alwar-301402. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAJFD0129N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri S.L. Poddar, Adv. & Shri Harsh Poddar, Adv. jktLo dh vksj ls@ Revenue by : Shri Gautam Singh Choudhary Addl.CIT lquokbZ dh rkjh[k@ Date of Hearing : 05/03/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 01/04/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM By way of present appeal, the assessee challenges the order of National Faceless Appeal Centre, Delhi [for short CIT(A)] dated 29.12.2023. The dispute relates to the assessment year 2017-18. Ld. CIT(A) passed that the order because the assessee challenged the order passed u/s 143(3) of the Income Tax Act, 1961 (for short “Act”) dated 28.12.2019 passed by ITO, Ward, Behror [ for short AO] before him.
Dev Group vs.ITO 2.1 At the outset of hearing, the Bench observed that there is delay of 326 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed application for condonation of delay with following prayers and the assessee to this effect also filed an affidavit :-
The appellant assessee is a partnership firm. The appellate order passed by the Learned CIT(A) on 29.12.2023 was served online on ITBA Portal on 29.12.2023 which came into the knowledge of the assessee in January-2025 as the old counsel of the assessee firm has not informed about the passing of the order and he has also not filed any reply before the CIT(A). The assessee was not aware and has no knowledge for receiving of the hearing notices from CIT(A). Therefore, the assessee has no knowledge regarding issue of hearing notices as well as passing of ex-parte order on 29.12.2023 by the learned CIT(A). There is delay of 327 days which is bonafide and non- intentional and beyond the control of the assessee. The Hon'ble I.T.A.T is humbly requested to consider the fact sympathetically and admit the appeal of the assessee by condoning the delay. The following case laws are quoted in support: - (i) Vijay Vishan Meghani vs. DCIT (Bombay High Court) (2017) 398 ITR 250 Appeal-Condonation of Delay-Claim for deduction under Section 80-0 made by Assessee was disallowed by AO for Assessment Year 1993-94 and confirmed by the Commissioner of Income Tax (Appeals)-Against order of Commissioner, assessee preferred appeal before Tribunal-Tribunal restored matter back to file of AO for Assessment Year 1993-94-AO passed order allowing claim under that section of the I.T. Act, 1961-Assessee preferred rectification application to AO to rectify his order for Assessment Year 1994-95 and Assessment Year1996-97-Rectification application was rejected by AO-CIT(A) upheld order of AO- Assessee filed application for condonation of delay in filling appeal against order of CIT(A)-Tribunal held that assessee simply put responsibility for delay on Revenue-Tribunal dismissed two appeals filed by assessee holding that same as barred by limitation-Tribunal held that delay of 2984 days in filling appeal could not be Dev Group vs.ITO condoned-Held, Supreme Court in case of Concord of India Insurance Co. Ltd.Vs. Smt. Nirmala Devi and others held that legal advice tendered by a professional and litigant acting upon it one way or other could be sufficient cause to seek condonation of delay and coupled with other circumstances and factors for applying liberal principles and then said delay can be condoned-None should be deprived of an adjudication on merits unless the Court of law or the Tribunal/Appellate Authority found that litigant deliberately and intentionally delayed filing of appeal-Tribunal though aware of these principles but possibly carried away by fact that delay of 2984 days was incapable of condonation-In process Tribunal went about blaming assessee and professionals and equally Department-Tribunal's order did not meet requirement set out in law-Tribunal completely misdirected itself and had taken into account factors, tests and considerations which had no bearing or nexus with issue at hand-Tribunal, therefore, erred in law and on facts in refusing to condone delay-Explanation placed on affidavit was not contested nor Court found that from such explanation, High Court could not arrive at conclusion that assessee was at fault, he intentionally and deliberately delayed matter and had no bona fide or reasonable explanation for delay in filing proceedings-High Court condoned delay of 2984 days in filing appeals-Assessee's Appeals allowed. (ii) Just Steels vs DCIT (2012) 74 DTR (MA) 86 Appeal could not be filed in time before the ITAT because the order of CIT(A) was misplaced. The firm stood dissolved and was recurring into losses. Delay to be condoned. (iii) Oracle India Pvt Ltd vs. Deputy Commissioner of Income Tax (2008) 13 DTR 371 that condonation of delay reasonable cause delay of 1297 days in filing appeal being on account of lapse on the part of consultant and not being malafide, there was valid reason warranting condonation of delay and admission of appeal". Copy of order is enclosed. (iv) Improvement Trust vs. Ujagar Singh (Supreme Court) CIVIL APPEAL NOS. 2395 of 2008 dated 26.06.2010. Unless mala fides are writ large, delay should be condoned. Matters should be disposed of on merits and not technicalities. The Appellant, a local authority, acquired land belonging to one of the Respondents for a development scheme in 1988. As the Appellant Dev Group vs.ITO did not pay the compensation amount despite notice, the property was auctioned and sale confirmed in favour of the highest bidder in 1992. The bidder deposited the sale proceeds. The Appellant then "woke up from its slumber" and filed objections before the Single Judge for setting aside the auction sale. Even in these proceedings, the Appellant did not appear and the same were dismissed for non-appearance. The sale deed was executed in favour of the highest bidder. The Appellant then filed an appeal before the District Judge which was barred by limitation by a couple of months. This appeal was dismissed on the ground that there was not sufficient ground for condonation of delay. Onmistaken advice, the Appellant filed a second appeal to the High Court which was thereafter treated by the Court as a revision application. This was also dismissed. The Appellant then filed a review petition which was also dismissed. Against that the Appellant filed a SLP which was also delayed. The delay in filing the SLP was condoned and the question before the Supreme Court was whether the District Judge was justified in dismissing the first appeal on the ground of delay. HELD allowing the appeal: (a) While considering an application for condonation of delay no strait- jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct, behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter, (b) Justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold; (c) Unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities. Apart from the above, the appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties; Dev Group vs.ITO In the circumstances it is submitted that it was because of the bonafide delay due to unseen circumstances. The appeal could not be filed in time. It is submitted that for something which happened due to inadvertence and beyond the control. Hence it is the prayer of the assessee as well as of the counsel that the Hon'ble Bench may kindly condone the delay and admit the appeal.”
In support of the contentions so raised the Authorized person has filed an affidavit to support the contentions raised in the prayer for condonation of delay in filing the appeal.
2.2 The ld. AR of the assessee appearing in this appeal submitted that the assessee is serious on the duties and the delay of 326 days in preparation and filing of appeal on account of mis communication resulted in delay and that too of his earlier counsel. As is evident that there was miscommunication that is why there remain noncompliance and that is the reason for delay in filling the appeal. Considering the decision of the apex court in the case of Collector, Land & Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) wherein it was directed the other courts to consider the liberal approach in deciding the petition for condonation as the assessee is not going to achieve any benefit for the delay in fact the assessee is at risk. Ld. AR of the assessee also cited various judgment in his prayer for condonation of delay.
Dev Group vs.ITO 2.3. During the course of hearing, the ld. DR objected to assessee’s application for condonation of delay as the assessee remain noncompliant before the ld. CIT(A) and even the appeal was not filed in time and therefore, he objected to the prayer of the assessee.
2.4 We have heard both the parties and perused the materials available on record. The Bench noted that the reasons advanced by assessee for condonation of delay of 326 days are sufficient to condone the delay because the same was the mistake at the part of the earlier counsel and that is why even the appeal was decided ex-parte and it has merit. Thus, we concur with the submission of the assessee and condone the delay 326 days in filing the appeal by the assessee 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 was prevented by sufficient cause and other decision cited by the assessee.
In this appeal, the assessee has raised the following grounds: - “1. In the facts and circumstances of the case, the Learned CIT(A) has erred in deciding the appeal of the assessee without giving the fair and reasonable opportunity of being heard.
Dev Group vs.ITO 2. In the facts and circumstances of the case, the Learned CIT(A) has erred in confirming the addition of Rs. 29,81,400/- made by the Learned Assessing Officer u/s 69A of the Income Tax Act, 1961 by treating the cash deposited in the bank account during the demonetization period as undisclosed income.
3. In the facts and circumstances of the case, the Learned CIT(A) 3 has erred in confirming the ah-hoc disallowance of Rs. 2,00,000/- out of various expenses debited in P&L A/c.
The assessee craves your indulgence to add amend or alter all or any grounds of appeal before or at the time of hearing.”
4. The fact as culled out from the record is that the return declaring income of Rs 3,17,920- for A.Y. 2017-18 has been filed on 30.10.2017. The assessee has declared income from business or profession for the year under consideration. The case was selected under scrutiny through CASS with remarks (i) cash deposit during the demonetization period" Under scrutiny. Notice u/s 143(2) of the I.T. Act. 1961 was issued on 24.09.2018 fixing the case for hearing on 03.10.2018. The case transferred ITO ward 1(1), Alwar to ITO Ward Behror. Due to change of incumbent notice u/s 142(1) was issued on 21.05.2019 along with query letter fixing the case for hearing on 05.06.2019. No compliance made by the assessee. Further notice u/s 142(1) was issued on 02.09.2019 fixing the case for hearing on 11.09.2019. No compliance made by the assessee. Thereafter notice u/s 142(1) was issued on Dev Group vs.ITO 24.09.2019 along with query letter fixing the case for hearing on 07.10.2019. No compliance made by the assessee. Thereafter notice u/s 142(1) was issued on 05.11.2019 fixing the case for hearing on 11.11.2019. In compliance to this notice the assessee filed online written reply received on 04.12.2019 furnished documents, details and produced relevant documents which were examined on test check basis and replies filed were placed on record.
4.1 During the course of assessment proceedings, the assessee was asked to produce justification for cash deposit during the demonetization period 09.11.2016 to 30.12.2016. The reply of the assessee is as under:-
That assessee firm dealing in financial services. Income tax return has been uploaded on 30.10.2017 at e-filing Acknowledgment No. 271460601301017.
That assessee firm deposited cash in the bank out of cash available in hand from the collection of instalments. From the reply of the assessee ld. AO noted that the cases where assessee’s deposited huge Cash in bank accounts during Demonetization period (9th November, 2016 to 30th December, 2016), but the sources were neither explained nor such money offered for taxation, the onus is on the assessee to prove that the Dev Group vs.ITO Cash deposits made did not bear the character of income. In this case, the assessee failed to prove this fact that the Cash deposited during demonetization period are normal business receipts and therefore, ld. AO hold that the amount of Deposits made in the bank accounts, including Cash deposited during Demonetisation period, represented income from undisclosed sources. During the course of assessment proceedings, the assessee was asked to produce justification the cash deposit in his bank account on various dates dates of Rs. 3,48,800/- as per table-1, Rs. 3,89,000/- as per table-2 and Rs. 22,43,600/- as per table-3. Total amounting to Rs. 29,81,400/-deposited during the demonetization period in this regards no reply furnished by the assessee. Thus, ld. Ao noted that the assessee has not proved that cash received and deposited into the bank account till demonetization period is from explained sources. The assessee has not produced cash flow statement during the course of assessment proceedings period of demonetization period old currency not is not legal tender. Hence, ld. AO added a sum of Rs 29,81,400/- as undisclosed income.
4.2 During the year under consideration, the assessee has debited a sum of Rs. 96,000/-on account of legal fee expenses, Rs. 70,257/- on account of telephone and mobile expenses, Rs. Dev Group vs.ITO 17,328/- on account of motorcycle repair expenses, Rs. 2,42,183/- on account of workmen and staff welfare expenses Rs. 75,678/- on account of office expenses. Rs.13,000/- on account of office maintenance Expenses, Rs. 83,732/- on account stationery expenses, Rs. 84,000/- on account of housekeeping expenses, Rs.19,500/- on account water expenses, Rs, 7,830/- on account of misc. expenses, Rs. 2,24,600/- on account of festival celebration expenses. Accordingly, the assessee was required to furnish details of these expenses during assessment proceedings. The assessee furnished details of these expenses but on verification during assessment proceedings, it is seen that the bills & vouchers of these expenses are not complete and most of the expenses have been booked on self-made vouchers. The assessee did not maintain any log register & call register for mobile. Beside the personal element on the expenses incurred on mobile expenses cannot be denied. The reply of the assessee was not acceptable by the ld. AO in absence of complete bills & vouchers excess booking of these expenses cannot be ruled out. In view of these facts, ld. AO considered it fair and just to disallow a sum of Rs 2,00,000/- out of expenses and added to the total income of the assessee.
Dev Group vs.ITO 5. Aggrieved by the above order of the Assessing Officer the assessee preferred an appeal before the ld. CIT(A). After perusing the submissions of the assessee, the ld. CIT(A) has dismissed the appeal of the assessee. The relevant finding of the ld. CIT(A) is as under:-
“5.1 In order to dispose of the appeal, the assessee was provided with several opportunities of hearing and called for written submissions and documentary evidence in support of the grounds of appeal raised. The details of opportunities of being heard provided to the assessee are tabulated below for ready reference: Sl. No. Date of notice/letter u/s Date of hearing Remarks 250 of the Act 1. 30.12.2020 14.01.2021 No response 2. 23.10.2023 30.10.2023 No response 3. 08.11.2023 16.11.2023 Requested for adjournment 4. 21.11.2023 18.12.2023 No response 5.2 As seen from the above, it is clearly evident that the assessee was provided with sufficient time and adequate number of opportunities of of being heard, but the assessee neither availed any of the said opportunities except seeking adjournment which was granted/E TAX DEPART
53. Accordingly, I am of the considered view that no useful purpose will be served in keep on adjourning the case without there being any response from the assessee. Thus, the appeal filed by the assessee is being disposed of on merits of the case, after considering the impugned assessment order passed by the AO uls.143(3) of the Act, and submissions made by the assessee in the form of statement of facts, in the subsequent paragraphs of this order. 5.4 Further, in the statement of facts, the assessee made certain submissions and the same are reproduced below for ready reference.
Dev Group vs.ITO "Assessee Firm filed his return on 30.10.2017 declared Total income from business Rs.317920. The case is selected for scrutiny through CASS with remarks CASH DEPOSIT DURING THE DEMONETIZATION PERIOD. All the required details aa per notices uploaded. The learned Income Tax Officer made additions Rs. 3181- 400-merely on estimation/ disallowance of expenses and unexplained money u/s 69A without any query and create heavy demand. Hence the appeal" 6.0 ANALYSIS OF THE FACTS AND ADJUDICATION OF THE GROUNDS: 6.1 The assessee has raised 6 grounds of appeal. Out of which, ground nos. 1 and 6 are general in nature and do not require any jurisdiction. 6.2 Ground No. 2 is raised against the AO's action in making the addition without properly seeing the submissions and without show cause notice. 6.3 Ground No.3 is raised against the AO's action in treating cash deposit during the demonetization period of Rs.29,81,400/- as unexplained money u/s.69A of the Act. 6.4 Ground No.4 is raised against the AO's action in disallowing a sum of Rs.2,00,000/-out of expenses claimed. 6.5 Ground No.5 is raised against the AO's action in initiating penalty u/s.271AAC(1) of the Act. 6,6 These grounds have been taken up for discussion and adjudication in the subsequent paragraphs of this order. 7.0 ANALYSIS and DECISION: 7.1 I have carefully considered the issue under dispute and examined the same in the light of the facts and circumstances of the case as emanating from the impugned assessment order u/s, 143(3) of the of the Act and relevant provisions of the statute. 7.2 Ground No. 2 is raised against the AO's action in making the addition without properly seeing the submissions and without show cause notice. As seen from the assessment order, sufficient time and multiple opportunities were provided to the assessee during the assessment proceedings and the assessment was completed after considering the Dev Group vs.ITO reply of the assessee. Further, even during the present appellate proceedings, as mentioned in the foregoing paragraphs, the assessee was given several opportunity of hearing but the assessee did not avail any of those opportunities. In view of the above, the contention of the assessee is not tenable. Thus, Ground No. 2 raised by the assessee on this issue is dismissed. 7.3 Ground No.3 is raised against the AO's action in treating cash deposit during the demonetization period of Rs.29,81,400/- as unexplained money u/s.69A of the Act. As seen from the assessment order, on perusal of bank statement, the assessee has deposited a sum of Rs.29,81,400/- in Indus Ind Bank, Bansur, 2) HDFC Bank, Bansur and 3) BRKG Bank, Bansur by way of cash during demonetization period i.e., 09.11.2016 to 31.12.2016 i.e., in the FY 2016-17 relevant to the AY 2017-18. During the course of assessment proceedings, the assessee claimed that the source of cash deposit is out of the cash available in the hand from the collection of installments as the assessee firm is dealing in financial services. However, the assessee did not furnish any documentary evidence to substantiate the nature and source of the cash deposit. The AO further observed that all three limbs of Section 69A of the Act stands qualified in the case of the assessee, i.e. (i) the assessee was found to be owner of the Money: (ii) such Money was not recorded in the books of accounts; and (iii) its nature and source is not identifiable.
Therefore, the AO treated the cash deposits of Rs.29,81,400/- as unexplained money u/s.69A of the IT Act. During the appellate proceedings, the assessee claimed that the source of the cash deposits are business receipts but failed to furnish any written submissions or documentary evidence in support of its claim. 7.4 I have given my thoughtful consideration to the issue under dispute and found that the AO made the impugned addition based on appreciation of factual matrix of the case. 7.5 At the outset, it is an admitted fact that consequent to demonetization of SBNs i.e., Rs.500/- and Rs. 1000/- notes, i.e., w.e.f. 09.11.2016, it has become illegal to transact in SBNs while conducting business operations or for that matter any other activities in exchange of SBNs. Further, the assessee failed to substantiate nature and the Dev Group vs.ITO source of the cash deposit made during the demonetization period with necessary documentary evidence. 7.6 Further, even during the course of present appellate proceedings, the assessee has failed to rebut the findings of the AO despite giving sufficient time and multiple opportunities. Under the circumstances, in the absence of details or documentary evidence forthcoming from the assessee, I am of the considered opinion that the AO rightly made the impugned addition of Rs. 29,81,400/- u/s 69A of the Act warranting no interference of the appellate authority. Thus, Ground No. 3 raised by the assessee on this issue is dismissed.
As the assessee did not receive any favors from the appeal so filed before ld. CIT(A). The present appeal is filed against the said order of the ld. CIT(A) before this tribunal on the grounds as reiterated in para 2 above. During the course of hearing, the ld. AR for the assessee prayed that the Id. CIT(A) passed the order ex-parte order and the assessee was not provided adequate opportunity of being heard. The ld. AR of the assessee prayed to grant one chance provide the correct details in connection with the merits of their case and the reasons advanced was that his old consultant has not attended the case of the assessee properly and thereby the assessee should not suffer.
Per contra, ld. DR objected to the prayer of the assessee and submitted that even the assessee did not represent case before the ld. CIT(A) and now they are praying for equity and justice even the appeal is filed delay this shows the assessee is not serious.
Dev Group vs.ITO 8. We have heard both the parties and perused the materials available on record. The bench noted from the submission made by the ld. AR for the assessee that the assessee’s case is adjudicated as an ex-parte by the ld. CIT(A) because the assessee did not submit any response to the notices so issued and the reasons advanced was the case of the assessee was handled by the counsel who did not inform the assessee. Therefore, he could present his case before the ld. CIT(A). Therefore, the bench is of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing an opportunity of being heard to the assessee. Considering that peculiar aspect of the matter we deem it fit to remand the matter to the file of the ld. CIT(A) who will consider the factual aspect of the matter as raised by the assessee after due verification of the facts and charge the correct income in the hands of the assessee after affording due opportunity to the assessee. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative during proceedings before the ld. CIT(A).
Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 01/04/2025.