Loading judgment…
Facts
The assessee is aggrieved by an order of the CIT(A) that upheld additions made by the AO on account of excess cash and undisclosed stock. The assessee had previously filed an appeal which was dismissed, and this is a second appeal before the Tribunal.
Held
The Tribunal held that the impugned order should be set aside and the matter remanded back to the CIT(A) for a fresh adjudication. The assessee was directed to pay a cost of Rs. 5000/- to the PM Relief Fund.
Key Issues
Whether the additions made by the AO on account of excess cash and stock were justified and if the assessee was given sufficient opportunity to present their case.
Sections Cited
253, 143(3), 246A, 250, 143(3), 250
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
the order bearing Number ITBA/NFAC/S/250/2022- 23/1047981997(1) dated 13.12.2022 passed by the Ld. CIT(A) u/s 250 of the Act which is hereinafter referred to as the “Impugned order”. The relevant Assessment Year is 2014-15
Page 1 of 10 and the corresponding previous year period is from 01.04.2013 to 31.03.2014.
FACTUAL MATRIX 2.1 That as and by way of an assessment order made u/s 143(3) of the Act, the assessee’s total income exigible to tax was computed and assessed at Rs.3,25,97,130/-. Income as per return of income was Rs.3,09,00,168/-. The addition of Rs.24,385/- was made on account of excess cash during the survey. Yet another addition of Rs.16,72,573/- was made on account of difference not explained of undisclosed stock (gold items & silver items). That the aforesaid assessment order is dated 05.12.2016 which is hereinafter referred to as the “impugned assessment order”.
2.2 That the assessee being aggrieved by the aforesaid “impugned assessment order” prefers the first appeal u/s 246A of the Act before the Ld. CIT(A) who by the “impugned order” has dismissed the 1st appeal of the assessee on the grounds and reasons stated therein. The core grounds and reasons are as under:-
“6.3 The Submissions of the appellant in the Form No. 35 and the material on record have been perused. At the outset it is brought
Page 2 of 10 on record the appellant's non-co-operative attitude for the appellate proceedings also. Despite granting sufficient time and issuing multiple notices the appellant has not submitted anything which supports his case.
6.3.1 Taking into account the facts and circumstances, as discussed above, and the records available on record the AO observed that that the appellant had not declared the excess Cash of Rs. 24, 385/- and excess Stock of Rs. 16,72,573/-.
The AO observed a difference in declaration during Survey proceedings and return of income. During the survey conducted in the business premises of the appellant the cash found was Rs. 38,04,175/- however the appellant in the return of income disclosed Rs. 37,79,790/- as excess cash. The appellant was given an opportunity to explain the difference in cash. The A.R. of the appellant accepted the error and agreed to pay tax on the difference amount of Rs. 24,385/- vide order sheet entry dated 5.12.2016. Thus the amount of Rs. 24,385/- was added back to the total income of the appellant.
With regard to addition on account of excess stock, the appellant vide statement dated 27.08.2013 accepted an undisclosed stock of Rs. 71,19/- in silver items and Rs. 2,62,96,239/- in gold items totalling to Rs 2,63,67,438/-. However, the appellant in the return of income disclosed excess stock at Rs. 2,46,94,865/-. The AO gave the opportunity to explain this difference of Rs. 16,72,573/-. The appellant stated that the value of excess stock found during the survey as per the report of the registered valuer. However, on perusal of the survey documents the AO found that the report of the registered valuer Shri Prateesh Sinha dated 27.08.2013 which is the same date as that of the statement of the appellant. The AO observed that as stated the appellant in the statement made on the same date obviously after the receipt of the report of the registered valuer, as accepted the excess stock of Rs. 2,63,67,438/-. Thus, the appellant's contention that he had taken the value of the excess stock found during the survey as per the report of the registered valuer is found to be Incorrect. Therefore, the AO added Rs. 16,72,573/- being the difference of excess stock found during survey and reported in the return of income by the appellant. The AO therefore completed the assessment u/s. 143(3) by making additions on account of excess cash and on account of excess stock of the appellant.
6.3.2 Taking into account the facts and circumstances, as discussed above, it is held that the AO is justified in making the Page 3 of 10 additions on account of excess Cash of Rs. 24,385/- and excess Stock at Rs. 16,72, 573/- of the Act. Therefore the grounds 1 and 2 of appeal filed by the appellant is dismissed and the action of the AO is upheld”
2.3 That the assessee being aggrieved by the “impugned order” has preferred the instant second appeal before this Tribunal and has raised following grounds of appeal in the Form No.36 against the “impugned order” which are as under:-
“Ground 1. That the addition of Rs.24,385/- made by the learned AO and confirmed by the Honourable CIT(A) as excess Cash be held to be bad and unjustified when the appellant had incorporated the correct excess of cash in his books and the cash found on the date of survey tallied with the books. The addition made be therefore quashed and deleted. Ground 2. That the addition of Rs. 16,72,573/- made by the learned AO and confirmed by the Honourable CIT(A) as excess Stock be held to be bad and unjustified when the Appellant had incorporated the correct excess of Stock in his books and the Stock found on the date of survey tallied with the books. The addition made be therefore quashed and deleted. Ground 3. The appellant craves leave to add, amend or alter any 3 Ground of Appeal before or during the course of appellate proceedings”.
Record of Hearing 3.1 The hearing in the matter took place before this Tribunal on 19.11.2025 when the Ld. AR appearing for and on behalf of the assessee appeared before us and interlia contended that the “impugned order” is illegal, bad in law and not proper. It was Page 4 of 10 brought to our notice that the registry has pointed out delay of 735 days in preferring the instant appeal. In this regard the Ld. AR has filed before this tribunal a condonation of delay application which is reproduced by us as below:-
BEFORE THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE
Appellant :Mahesh Chandra Agarwal Prop. M/s Swarn Pushp Jewellers, Sarafa Chowk, Bhopal-462001 PAN :AAVPA82548 Assessment Year : 2014-15
CONDONATION OF DELAY
The appellant seeks to prefer an appeal before this Honourable Tribunal against the Order u/s 250 r.w.s. 143(3) dated 13/12/2022 made by the CIT(A), NFAC, Delhi. The appellant. respectfully submits that the appeal was e-filed on 02/02/2023 through Acknowledgement Number: 1675333033, within the prescribed statutory period. However, due to inadvertent procedural oversight, the physical copy of the appeal in Form 36 along with requisite enclosures in three sets was not filed before the Honourable Tribunal. As a consequence, the Honourable Tribunal did not accept the original appeal, treating it as defective and incomplete. Upon realizing the above procedural lapse, the appellant has promptly and diligently prepared this physical filing of the appeal in Form 36 along with all necessary enclosures. The delay in filing the physical copy of the appeal was neither deliberate nor intentional but due solely to the aforesaid oversight. The appellant humbly submits that substantial justice may kindly prevail over procedural technicalities, and the delay may be condoned and the appeal may kindly be admitted in the interest of justice. The appellant assures this Hon'ble Tribunal that all future procedural requirements will be duly complied with in a timely and diligent manner. Copy of Acknowledgement No. 1675333033 of old Form 36 dated 02/02/2023 is attached.
Page 6 of 10 3.2 The Ld. AR has placed on the record of this tribunal a paper book containing pages 1 to 32. Our attention was brought to paper book page 9 & 11 which we have already reproduced above (supra). On page 3 of the paper book we notice that a new Form No.36 was filed on 12.02.2025. It was submitted by the Ld. AR that Govind Rinwa was the new counsel appointed by the assessee as his uncle who was looking after the file of the assessee had expired. Fresh appeal was filed due to the reasons mentioned in the aforesaid condonation of delay application however the old fee which was paid was used (page 9 of paper book). The Ld. AR therefore pleaded that the assessee has demonstrated “sufficient cause” hence the delay should be condoned. It was a bonafide mistake. There was no deliberate defiance of law. The Ld. DR has left the issue to the wisdom of the tribunal to take an appropriate call with regard to the delay aspect. After hearing both the Ld. AR & Ld. DR we are of the Page 7 of 10 considered view that the delay should be condoned as sufficient cause is shown and accordingly the delay is condoned and the appeal is admitted for hearing.
3.3 The Ld. AR then submitted before us that the “impugned order” is an ex-parte order. It was submitted fairly that though the e-mails were received but somehow the assessee could not represent. It was also submitted that the assessee is a senior citizen too. It was submitted that the additions made are to the tune of nearly 17 lakhs and therefore such additions requires meritorious disposal after the assessee is allowed an opportunity of hearing and to give his explanations. It was also submitted that the ends of justice too requires that at least one more opportunity be given to the assessee to air his grievances.
The Ld. DR appearing for the revenue submitted that looking to the peculiar facts and circumstances of the case this tribunal should impose a cost as a deterrent measure and then only the revenue has no objection if the matter is remanded to the Ld. CIT(A) on denovo basis.
Observations,findings & conclusions.
4.1 We now have to decide the legality, validity and the proprietery of the “impugned order” basis records of the case and rival contentions canvassed before us.
4.2 We have carefully perused the records of the case as presented to this Tribunal by both the Ld. AR & the Ld. DR to determine the legality, validity of the “impugned order” basis law and by following the due process.
4.3 We basis records of the case and after hearing and upon examining the contentions are of the considered view that both the Ld. AR & the Ld. DR are on the same page/Ad idem that the “impugned order” should be set aside and that the matter should be remanded back to the file of Ld. CIT(A) so as to enable him to pass a fresh order which order should take entire gamut of the case including the submissions of the assessee. The assessee should be given full and complete opportunity to set up his case in a meaningful and effective manner.
4.4 In view of the aforesaid we set aside the “impugned order” and remand the case back to the file of Ld. CIT(A) on denovo basis, subject the assessee paying cost of Rs.5000/- to the “PM
Page 9 of 10 Relief Fund”. The assessee to show the receipt of such payment before the Ld. CIT(A) before the first appeal on denovo basis is taken up for hearing on denovo basis as directed aforesaid.
Order 5.1 In the premises drawn up by us, the “impugned order” is set aside and the case of the assessee is remanded back to the file of the Ld. CIT(A) on denovo basis.
5.2 In result, appeal of the assesse is allowed for statistical purpose. Order pronounced in open court on 26.11.2025.