SHIVNARAYAN RAJPUT,HOSHANGABAD, MADHYA PRADESH vs. INCOME TAX OFFICER WARD 1 ITARSI, AAYKAR BHAWAN, ITARSI

आदेश / O R D E R

Per Paresh M Joshi, J.M.:

This is an appeal filed by the assessee Under Section 253 of

the Income Tax Act, 1961 (hereinafter referred to as the “Act” for

sake of brevity) before this Tribunal. The assessee is aggrieved by

the order bearing Number ITBA/NFAC/S/250/2024-

25/1065122347(1) dated 24.05.2024 passed by the Ld. CIT(A)

which is hereinafter referred to as the “Impugned order”. The

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Shivnarayan Raput ITA No.771Ind/2024 - A.Y.2012-13 relevant Assessment Year is 2012-13 and the corresponding

previous year period is from 01.04.2011 to 31.03.2012.

2.1 That as and by way of an assessment order u/s. 144/147

of the Act the total income of the assessee exigible to tax was

computed and assessed at Rs.1,75,85,028/-. That the aforesaid

assessment order is dated 12.12.2017 which is hereinafter

referred to as the “impugned assessment order”. A bare simple

perusal of the “impugned assessment order” shows that despite

several opportunities given to the assessee as and by way of

number of the notice(s) issued under the Act, the assessee has

remained NON COMPLIANT which led the Ld. A.O to pass the

“impugned assessment order” by exercising the power u/s 144

of the Act which is conferred upon the Ld. A.O under the Act

called “best judgment assessment”.

2.2 That the assessee being aggrieved by the “impugned

assessment order” prefers first appeal u/s 246A of the Act

before the Ld. CIT(A) who by the “impugned order” has

dismissed the first appeal of the assessee on the grounds and

reasons stated therein. The core reason for dismissal of the first

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Shivnarayan Raput ITA No.771Ind/2024 - A.Y.2012-13 appeal was once again non-compliance to the notice(s) of

opportunity which were issued to the assessee by the Ld. CIT(A)

from time to time.

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 Form No.36 against the

“impugned order” which are as under:-

“1. That the learned NFAC (Appeals) was not justified in upholding the order of the Ld. AO in view of the fact that the order passed u/s 144 was illegal, void and in breach of principle of natural justice.

1.1 That, the Commissioner of Income-Tax (Appeals) erred in conferring to the ex-parte order passed in violation of principle of natural justice and is also in violation of provision of Section 250 & 251 where it clearly provides that the Ld. CIT (A) has to pass a speaking order on the merits of the case by examining, verifying and analyzing the material on record. Since there is no meritorious finding given by the Ld. CIT(A) thus the ex-parte order passed without giving opportunity of being heard is illegal, bad in law and perverse.

2.1 That the Learned AO had no substantial rational behind the re-opening of assessment and merely a ground of assumption or suspicion is not adequate for re-opening of assessment and the same is reiterated by the ITAT Delhi in the case of Shri Mahavir Prasad Vs ITO, ITA No. 924/DEL/2015, herein the instance the learned AO solely relied on an erroneous assumption and added cash credit while assessing the income of the assessee, whereas factually the assessee did not receive any income from the purchaser.

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Shivnarayan Raput ITA No.771Ind/2024 - A.Y.2012-13 3. That the Ld. AO order lacked on merits as the order was solely based on assumption as to the source of deposit in the Assessee's account without scrutinizing the credibility of the assumption thus the Ld. CIT(A) has erred in upholding the order passed by Learned AO and thereby levying penalty.

3.1. That the Ld. Assessing officer erred in law and facts of the case as the Income Tax Act does not work on the lines that whatever is cash/deposit received by a person must be regarded as income and shall be liable to tax and the same is laid down by the Apex Court in the case of Parimisetti Sethramamma Vs CIT, 57 ITR 532. Yet, in the case the actions of the learned AO implies that any source of deposit in the account of Assessee was treated as cash credit and was charged for tax in assumption or presumption, without making any further investigation or inquiry to bring on record any report of competent authority. 4. The Appellant reserves the right to, add, amend or alter any ground of appeal”.

3.1 The hearing in the matter took place before this Tribunal on

17.07.2025 when the Ld. AR for and on behalf of the assessee

interalia contended at the outset that there is delay of 87 days in

filing the instant second appeal and in this regard a condonation

of delay application is placed on record and the attention was

invited to para 7 of the said application wherein the following

averments were made:-

“7. That the delay in filing the present appeal is partly attributable to the conduct of the Appellant's counsel, Shri Dharmendra Kumar Gupta, who was entrusted with handling the matter. Although the said counsel had duly informed the Appellant about the passing of the impugned order dated 24/05/2024 in a timely manner, the necessary steps for filing

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Shivnarayan Raput ITA No.771Ind/2024 - A.Y.2012-13 the appeal were not undertaken promptly due to lack of proper coordination and follow-up. The delay was primarily caused firstly the counsel misplaced the relevant documents required for filing, including Form 36 and the Vakalatnama, which had already been duly signed by the Appellant. Secondly the counsel was preoccupied with the filing of Input Tax Returns and conducting audits during the months of July to September 2024. As a result, the preparation and filing of the appeal could not be complete, despite the Appellant's consistent willingness and intention to pursue the matter, ultimately leading to the delay”.

Basis above it was contended that delay of 87 days be

condoned in the interest of justice. An affidavit dated 05.01.2025

is too placed on record in support of condonation of delay. The

Ld. DR appearing for Revenue fairly submitted that the Revenue

has no objection if the delay is condoned. Accordingly this

Tribunal condones the delay of 87 days in filing the present

second appeal. Appeal is admitted and taken up for hearing.

3.2 The Ld. AR then submitted that the assessee is a senior

citizen and lacks adequate knowledge. Notice(s) of the Ld. A.O

could not be complied with due to depression which was on

account of death of his wife and daughter. It was contended that

the Ld. A.O has added entire sale consideration proceeds to the

income assessed and has not added the capital gain portion. It

was further contended that in Form No.35 the e-mail id of his tax

consultant was given for communication purpose and despite

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Shivnarayan Raput ITA No.771Ind/2024 - A.Y.2012-13 notice(s) he did not appear before the Ld. CIT(A). It was

submitted that para 3 of the “impugned order” be taken into

account. The Ld. DR submitted that in the given facts and

circumstances which have been debated today during the course

of the hearing it would be fair and just that the matter be

remanded to the Ld.AO for fresh adjudication.

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 Ld. AR & Ld. DR to determine

the legality, validity of the “impugned order” basis law and by

following due process .

4.3 We basis records of the case and after hearing and so also

upon examining the contentions are of the considered opinion

that both the “impugned assessment order” of the Ld. A.O and

so also the “impugned order” of Ld. CIT(A) are of such a nature

that the real income of the assessee is not determined in real

time basis. There is no opportunity in effective manner appears

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Shivnarayan Raput ITA No.771Ind/2024 - A.Y.2012-13 to have been granted wherein the assessee could have explained

nitty gritty of his income on merits. This Tribunal desires

meritorious disposal of first appeal and so also determination of

income of the assessee on hard facts basis material.

Unfortunately in both orders of lower authority this has not been

happened. Hence we concur with the submissions of both the Ld.

AR as well as Ld. DR that it would be in fitness of things that the

“impugned order” be set aside and matter be relegated back to

the file of jurisdictional A.O where assessee could explain his

case on his income in an effective manner by producing

necessary papers, documents and information so that real

income exigible to tax can be computed and assessed on merits.

Accordingly we set aside the “impugned order” and remand the

case back to the file of jurisdictional A.O on denovo basis who

after giving opportunity to the assessee will pass a fresh order on

merits which should be reasoned one and speaking too.

5.1 In the premises drawn up by this Tribunal as aforesaid we

set aside the “impugned order” and remand the case to the

Jurisctional A.O on denovo basis with the directions as aforesaid.

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Shivnarayan Raput ITA No.771Ind/2024 - A.Y.2012-13 5.2 In the result appeal of the assessee is allowed for statistical

purpose.

Order pronounced in open court on 22.07.2025.

Sd/- Sd/-

(B.M. BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER Indore िदनांक / Dated : 22/07/2025 Dev/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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