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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI B.M. BIYANI & SHRI PARESH M. JOSHI
आदेश/ O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by order of first-appeal dated 31.10.2023 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 27.03.2023 passed by learned Assessment Unit of Income-tax Department [“AO”] u/s 147 r.w.s. 144 & 144B of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2018-19, the assessee has filed this appeal.
The assessee has raised following grounds:
“1. On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in sustaining the assessment order passed by Ld. AO under section 147 rws 144 rws 144B which is contrary to the material on records and provisions of the Act, unjust and bad in law.
2. On the facts and circumstances of the case and applicable law, NA Ld. CIT(A) erred in sustaining the proceedings initiated under section 148 read with section 147 which is bad in law without. complying with the provisions of section 148A(b) when the notice has not been served on the assessee.
3. On the facts and circumstances of the case and applicable law, NA both Ld. CIT(A) and Ld. Assessing Officer erred in not providing the copy of the approval obtained for issuing notice u/s 148.
4. On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in sustaining the entire addition of entire deposits in the two bank accounts amounting to Rs. 2,03,92,745 and applying the higher tax rate as per section 115BBE.
On the facts and circumstances of the case and applicable law, Ld. Assessing Officer erred in making addition of entire deposits in the two bank accounts amounting to Rs. 2,03,92,745 without giving the credit of the withdrawals made from the bank accounts.
6. On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in sustaining the addition made by Ld. Assessing Officer by applying the provisions of section 44AD to the income from contract receipts amounting to Rs. 1,03,958 thereby making addition of Rs. 8,316 at the rate of 8 percent, by applying the higher tax rate as per section 115BBE.
7. On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in sustaining the addition made by Ld. Assessing Officer of Rs. 87,739 towards commission income by applying the higher tax rate as per section 115BBE.
On the facts and circumstances of the case and applicable law both Ld. CIT(A) and Ld. Assessing Officer erred in negating the returned income of Rs. 1,93,700 which already included the income earned from contract and commission income.
On the facts and circumstances of the case and applicable law, NA both the Ld. CIT(A) and Ld. Assessing Officer erred in not giving reasonable opportunity of being heard.
On the facts and circumstances of the case and applicable law, Ld. CIT(A) erred in not considering the reasonable cause for delay in filing of appeal being the medical issues of the assessee. 11.On the facts and circumstances of the case and applicable law,
In so far as the Ground No. 2 is concerned, the same is a legal ground in which the assessee/appellant claims that the proceeding initiated u/s 148 read with section 147 without complying with the provisions of section 148A(b) is bad when the notice had not been served upon assessee. For this ground, the revenue/respondent filed a report bearing No. ITO-1/2024- 24/Khandva dated 12.07.2024 giving evidences of service of notice u/s 148A(b) upon assessee. The Ld. AR for assessee is satisfied with the report of AO and has accordingly requested the bench for not pressing this ground.
In open Court, the Ld. AR has also signed against Ground No. 2 in Form No. 36 with the remark “N.P.”. The Ld. DR for revenue does not have any objection if the prayer of Ld. AR is accepted. In view of this, the Ground No. 2 is dismissed as non-pressed/withdrawn.
For rest of the grounds, Ld. AR firstly drew us to the assessment-order to show that the same had been passed by AO u/s 144 for non-compliances of various notices issued u/s 143(2)/142(1) during the period 12.10.2022 to 13.03.2023 as mentioned in Para 2 of AO’s order. Thereafter, Ld. AR carried us to the impugned order of first-appeal passed by CIT(A) to show that the CIT(A) has dismissed assessee’s appeal on the footing of delayed filing by 122 days.
5. Having shown thus, Ld. AR submitted that the assessee had been suffering from multiple abdominal surgeries during the period 09.09.2017 to 11.01.2023 and filed voluminous medical reports of hospitals supported by an affidavit (copies of these documents are placed at Pages 17-34 of Paper- Book) to CIT(A). That because of persistent suffering of assessee, the assessee was neither able to make compliances before AO nor file the first appeal in time. However, the CIT(A) dismissed assessee’s submission on the footing that the assessment-order was served upon assessee through e-mail on 27.03.2023 whereas the period of hospitalization had already completed by then. Ld. AR submitted that although the last discharge report of hospital was dated 11.01.2023 but the assessee’s suffering did not come to end by that day. She submitted that the assessee had been continuously suffering for more than 6 years from 2017 to 2023 as can be seen from medical reports and continued/continues to suffer even today. Ld. AR very humbly submitted that there was no lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand to derive any benefit because of delay. She further submitted that the sole reason of delay is as explained in the condonation-application. He submitted that there is “sufficient cause” for delay and hence the delay of 122 days should have been condoned by CIT(A). Ld. AR requested the bench to take a judicious view and condone the delay occurred in filing first appeal. Ld. DR for Revenue left the matter to the wisdom of Bench without raising any objection. We have considered the explanation advanced by assessee and in Page 4 of 6 absence of any contrary fact or material on record, the assessee is found to have a “sufficient cause” for delay in filing first appeal to CIT(A). It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice-oriented approach. Thus, taking into account the facts of case and the decision of Hon’ble Supreme Court, we take a judicious view and condone the delay occurred in filing first appeal.
On merit of case, Ld. AR submitted that the assessee has filed all necessary evidences in Paper-Book running over 220 pages to help the AO to make a proper adjudication in accordance with law and prayed to remand this case to the file of AO for adjudication afresh after examining assessee’s evidences. Ld. DR for revenue agrees with the submissions and prayers made by Ld. AR and leaves the entire matter for the wisdom of bench without raising any objection. However, he makes a request to direct the assessee to represent his case before AO and do not seek unnecessary adjournments. Considering these submissions of parties; having regard to the principle of natural justice and also bearing in mind that no prejudice would be caused to revenue if the present matter is restored at the level of AO, we remand this matter back to the file of AO for adjudication afresh, at the risk and responsibility of assessee. The AO shall give necessary opportunity of hearing to assessee and pass an appropriate order
Page 5 of 6 uninfluenced by his earlier order. The assessee is also directed to remain vigilant and ensure participation in the hearings as may be fixed by AO and do not seek unnecessary adjournments failing which the AO shall be at liberty to pass appropriate order in accordance with law. Ordered accordingly.
Resultantly, this appeal is allowed for statistical purpose.
Order pronounced in open court on 26/08/2025