SHAILENDRA GARG,SRIGANGANAGAR vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 6, JAIPUR

MOST RESPECTFULLY SHOWETH:-

The humble appellant/assessee, Shri Shailendra Garg, submits the captioned application as under:-

1. 1. That the appellant has filed the appeal against the impugned order dated 16-03- 2017 (became aware on 25-09-2024), passed by the Ld. CIT(A), whereby the appeal under Section 250 of the Income Tax Act against the assessment order dated 02-03-2015 was dismissed.

2. That the appellant submits that there has been a delay of 35 days in filing the present appeal before this Hon'ble Tribunal. The appellant submits, as explained in detail hereinafter, Assessee has been diligent in pursuing his case and the delay is only bonafide. For the reasons mentioned in this application, the Assessee submits the Assessee has sufficient reason for the delay in approaching this Hon’ble Tribunal.

3. That the assessee submits that the aforesaid delay in filing the appeal is due to the fact that the impugned order was never served on the asseseee. The impugned order is dated 16.03.2017, during that time, the assessee was in judicial custody in connection with the FIR No. 422/2014 PS CBI/ACD filed for offences u/s 13(2) read with section 13(1)(C)(D) of the Prevention of Corruption Act, 1988 and 120B, 420, 467, 468 and 471 IPC.

4. That the assessee submits that during 2015-2017,the assessee was in judicial custody in the year 2015 in connection with FIR No.422/2014 and was granted bail for the FIR No. 422/2014 by Hon’ble Supreme Court vide order dated 02-05-2017 with the condition that assessee could not enter the state of Rajasthan.

5. That during the aforesaid period, the assessee was re-arrested in connection with a different FIR No.172/2017 PS motidungri on 24-05-2019 and was in judicial custody from 25-05-2019 till the grant of the bail by the Hon’ble High Court on 20- 05-2020.

6. That the Assessee submits that from 2017-2022, the Assessee was out of the state of Rajasthan on account of the condition imposed by the Hon’ble Supreme Court of India vide its order dated 02-05-2017 and the said condition was lifted in AND ANOTHER SHAILENDRA GARG VS ACIT, CIRCLE-6, JAIPUR November’2022 vide order dated 09-11-2022 passed by the Hon’ble Supreme Court.

8. That the Assessee realising his responsibility and diligence has appointed professionals from time to time to manage his tax matter/compliances. When the assessee was in Delhi (on account of the condition imposed by the Hon’ble Supreme Court), the assessee engaged one Jyotish Singh CA for carrying out his tax compliances. When his CA did not act professionally, especially when the period he was in the outside state of Rajasthan, the assessee filed a complaint againstthe Delhi police on 13-01-2021 against the CA. Thereafter, he engaged M/s Singhal & Co in February 2021. The aforesaid facts were in knowledge of his AR despite thereof his authorised person did not act diligently and communicated these facts to CIT(A), nor to the assessee about the steps to be taken against the impugned order. The entire file including certified copy of the assessment order (which was available with erstwhile AR) was handed over to M/s Singhal & Co in 2021 however, assessee was not aware that no action on the same has been taken so far.

AND ANOTHER SHAILENDRA GARG VS ACIT, CIRCLE-6, JAIPUR 19. In addition to the above, the assessee in the present case has carried out a best judgment assessment and the major addition pertains to an amount which inherently is not taxable, and which was never even received by the assessee.

2.2 To this effect, the assessee has filed affidavits in respect of each appeal deposing the contents mentioned in the application for condonation of delay.

2.3 It is also pertinent to mention here that in respect of each appeals the assessee has filed the grounds of appeal which are mentioned at Form 36 of the appeals and they are not required to repeat it. 2.4 On the other hand, the ld. DR supported the orders of the ld. CIT(A). 2.5 We have heard both the parties and perused the materials available on record. We take reference of the appeal of the assessee for the assessment year 2011-12 wherein the ld.CIT(A) at para 7.3 has observed as under:- ‘’7.3. I have perused the facts of the case, the assessment order and the submissions of the appellant. An amount of Rs. 10,02,378/- was appearing in the AND ANOTHER SHAILENDRA GARG VS ACIT, CIRCLE-6, JAIPUR balance sheet of M/s Garment Craft as liability payable under suspense account. The appellant explained these as untraced receipts/payment outstanding for adjustment in appropriate accounting heads kept in suspense liability and grouped under the outstanding liabilities as shown in Schedule-6 of the audited balance sheet. Since, the assessee could not furnish details of these amounts even during assessment proceedings by when substantial time had elapsed after the audit and could not even give details as to whether these liabilities actually existed, treated the same as unexplained credit and added the same under section 68 of the I.T. Act, 1961. In the proceedings before me, the Authorized Representative submitted that the assessee is facing certain legal proceedings and is in judicial custody. Even in the present proceedings no details of these receipts are furnished. The appellant submitted that Assessing Officer has not made proper investigation and added the amounts. In the absence of any details furnished by the assessee, Assessing Officer possibly cannot conduct any enquiries or investigations. Further, no justification for these amounts have been produced in the present proceedings also. In view of the discussion as above, the addition made under section 68 of the I.T Act, 1961 is confirmed. The ground of appeal is dismissed.’’ We further take reference of the appeal of the assessee for the assessment year 2012-13 wherein the ld.CIT(A) at para 13.2 has observed as under:- ‘’13.2 I have perused the facts of the case and assessment order. As per assessment order assessee has claimed deduction u/s 80C of Rs.1,00,000/- on account of LIC premium paid by him. The assessee was asked to furnish necessary evidence in support of paid of LIC Premium. The assessee has not furnished required documents during the assessment proceedings before the assessing officer nor during appellate proceedings before me, therefore, the addition made by the assessing officer, is confirmed. This ground of appeal is dismissed.’’ We further take reference of the appeals of the assessee for the assessment year 2014-15, 2015-16 and 2016-17 wherein the ld. CIT(A) has dismissed the appeals of the assessee on the ground of not condoning the delay by observing as under:

AND ANOTHER SHAILENDRA GARG VS ACIT, CIRCLE-6, JAIPUR Assessment year 2014-15 ‘’5.7 In view of facts discussed above, in the present case, appellant has failed to prove beyond doubt that it had acted diligently and was not guilty of negligence. Appellant failed to produce documentary evidence substantiating his claim. Simply making a statement that appellant came to know about the assessment order only after receiving information from department in his case, cannot constitute a sufficient or good reason for condoning inordinate delay of 727 days for the appeal under consideration. Under these circumstances, as the appeal is filed beyond the due date prescribed under law and sufficiency of the reasons for the delay are not established. Therefore delay in filing of appeal is not condoned In the result, appeal stands dismissed. In view of the fact thatappeal has been dismissed on the ground of rejection of petition for condonation of delay, merit of the case is not being discussed.

AND ANOTHER SHAILENDRA GARG VS ACIT, CIRCLE-6, JAIPUR 7. In view of the fact that appeal has been dismissed on the ground of rejection of petition for condonation of delay, merit of the case is not being discussed.

8. In result, the appeal is dismissed.’’ From the entire conspectus of the case, the Bench noticed that the assessee during the year 2015—2017 was in judicial custody in connection with FIR No 422/2014 and was granted bail for the FIR No. 422/2014 by Hon’ble Supreme Court vide order dated 02-05-2017 with the condition that assessee could not entre the state of Rajasthan. Further the assessee was re-arrested in connection with different FIR No. 172/2017 Police Station Motidungri on 24-05-2019 and was in judicial custody from 25-05-2019 till the grant of the bail by the Hon’ble High Court on 20-05- 2020. It is also submitted by the assessee that from 2017-2022, he was out of the State of Rajasthan on account of the condition imposed by the Hon’ble Supreme Court of India vide its order dated 02-05-2017 and the said condition was lifted in November 2022 vide order dated 09-11-2022 passed by the Hon’ble Supreme Court. The assessee submitted that he was prevented by COVID 19 pandemic to approach the Court during the year 2020-2022. The grievance of the assessee was that the impugned order 16-03-2017 was not received during that time as he was in Judicial custody in connection with the FIR No. 42/2014 PS CBI/ACD filed for AND ANOTHER SHAILENDRA GARG VS ACIT, CIRCLE-6, JAIPUR offences u/s 13(2) read with section 13(1)©(D) of the Prevention of Corruption Act, 1988,and 120B,420, 467, 468 and 471IPC. He further submitted that there was a lack of advice of his counsel M/s. Singhal Jain &Co. who engaged to solve all the tax matters and for this reason the assessee had to suffer a lot. The Bench can understand the agony when one has to suffer for one reason and the others. Since the assessee was in Jail/ Police Custody or out of Rajasthan as narrated above, therefore, it was difficult for him to look into the matters relating to income tax and pursue the appeals before the Income Tax Authorities to substantiate his case. Hence, in this view of the matter, the delays made by the assessee in filing the appeals are condoned. Further, it is also noteworthy to mention that in quantum appeals the assessee was not in a position to file the reply to the queries of the AO during assessment proceedings, these appeals are restored to the file of the AO to decide it afresh but by providing adequate opportunity of being heard to the assessee and also taking into consideration the mental agony of the assessee.Thus, the quantum appeals of the assessee are restored to the file of the AO for afresh adjudication. 2.6 Be that as it may since it is an admitted fact that the assessee is ex- parte before the AO and also before the ld. CIT(A). Therefore, he could not AND ANOTHER SHAILENDRA GARG VS ACIT, CIRCLE-6, JAIPUR put forth his defence. It was the bounded duty of the assessee to appear before the statutory authorities as and when called for. It is noticed that various opportunities were provided to the assessee for settling the issuebut the assessee could not pursue the cases for the reasons mentioned hereinabove. However, we are 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 opportunity of being heard to the assessee. Hence, the matter is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeals of the assessee are allowed for statistical purposes. 2.7 Before parting, the Bench makes it clear that its decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by AO independently in accordance with law. 3.1 As regards the penalty appeals of the assessee relating to Section 271(1) ©, 271F, 271(1)(b) and 271B of the Act, the Bench feels that since the quantum appeals of the assessee have been restored to the file of the AO for afresh adjudication, therefore the fate of penalty appeals will be in