ABHAY SINGH,INDORE vs. ITO-3(1), INDORE, INDORE
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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 two separate orders of first-appeal, both dated 22.04.2024 and both passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] for Assessment-Year [“AY”] 2011-12 & 2012-13, which in turn arises out of respective assessment-orders dated 19.12.2018 passed by learned ITO-3(1), Indore [“AO”] u/s 144 r.w.s. 147 of Income-tax Act, 1961 [“the Act”], the assessee has filed these appeals on the grounds mentioned in Appeal Memo (Form No. 36).
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Abhay Singh ITA No. 51 & 52 /Ind/2025 - AY 2011-12 & 2013-14
The registry has informed that these appeals are delayed by 12 days
and therefore time-barred. Ld. AR for assessee submitted that the assessee
has filed applications for condonation of delay supported by affidavits on
stamp. Referring to same, Ld. AR submitted that the assessee immediately
after receipt of impugned orders, handed over the same to previous counsel
and paid appeal filing fee also but the previous counsel did not file appeals
in time. Ultimately, the assessee approached present counsel and with his
assistance, filed these appeals to ITAT. Ld. AR submitted that there is 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. He further submitted that the sole reason of delay is previous
counsel’s mistake. He submitted that there is a “sufficient cause” for delay
and hence the delay should be condoned. Ld. DR for Revenue did not raise
objection against condonation of delay. We have considered the explanation
advanced by assessee and in absence of any contrary fact or material on
record, the assessee is found to have a “sufficient cause” for delay in filing
present appeal. We find that section 253(5) of the Act empowers the ITAT to
admit an appeal after expiry of prescribed time, if there is a “sufficient
cause” for not presenting appeal within prescribed time. 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-
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oriented approach. Thus, taking into account the provision of section 253(5)
and the decision of Hon’ble Supreme Court, we take a judicious view,
condone delay, admit these appeals and proceed with hearing.
Ld. AR next submitted that in both of these matters, the AO has acted
u/s 147 on the basis of AIR information revealing cash deposits in bank a/c
and ultimately, in the assessment-orders passed, the AO has made
additions of estimated business income on the basis of impugned deposits
in bank a/c. But the relevant Bank A/c No. 004105012592 with ICICI Bank
considered by AO belonged to a partnership firm “M/s Prakash Motors”. Ld.
AR submitted that the said firm was constituted by two partners Shri J.P.
Gupta and Shri Ajay Gupta and the assessee was just an employee of the
firm. He submitted that a “General Power of Attorney” was given by partners
of firm to assessee-employee to open and operate bank a/c in the name of
firm and based on such authority, the assessee maintained the aforesaid
A/c with ICICI Bank in the name of firm. Ld. AR submitted that although
the a/c belonged to partnership firm “M/s Prakash Motors” but by mistake
the assessee-employee’s PAN was fed in the banking system. The assessee
has filed following certificate issued by bank to demonstrate these facts:
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Ld. AR submitted in open court that “M/s Prakash Motors” is a
separate assessee and regularly getting accounts audited and filing income-
tax returns in which the transactions of said bank a/c have been duly
recorded. Thus, in nutshell, Ld. AR submitted that the said bank a/c does
not belong to assessee and the transactions made therein cannot be
considered for taxation in assessee’s hands. Ld. AR submitted that the
addition made by AO in the hands of assessee on accounts of estimated
business income on the basis of deposits in impugned bank a/c is not
sustainable. Therefore, the present matters must be remanded to the file of
AO for a fresh adjudication after necessary verification.
Ld. DR for revenue agrees to the submissions of Ld. AR.
In view of above 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 matters are restored at the level of AO
rather it would result in a better adjudication as per correct facts and law,
we remand these matters 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 appropriate orders uninfluenced by his earlier
orders. 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 orders in accordance with law. Ordered accordingly.
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Resultantly, these appeals are allowed for statistical purpose.
Order pronounced in open court on 25/06/2025
Sd/- Sd/-
(PARESH M. JOSHI) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER
Indore
िदनांक/Dated : 25/06/2025
Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPYSr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
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