DHARMENDRA KUMAR,KHANDWA vs. ITO, KHANDWA

आदेश/ O R D E R

Per B.M. Biyani, A.M.:

“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.

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.

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 In view of this, the Ground No. 2 is dismissed as non-pressed/withdrawn.

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.

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.

Order pronounced in open court on 26/08/2025