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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 14.09.2023 passed by learned Commissioner of Income-Tax (Appeals), NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 06.12.2019 passed by learned ITO, Dhar [“AO”] u/s 144 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2017-18, the assessee has filed this appeal on following grounds:
“1. On the facts and in the circumstances of the case the Ld. C.I.T.(Appeals) (NFAC) erred in upholding the assessment order passed by ld. A.O. by making assessment u/s 144 of Act, without considering the fact that Page 1 of 12
On the facts and in the circumstances of the case, the Ld. C.I.T.(Appeals)
(NFAC) erred in upholding the assessment order passed by ld. A.O. by making addition of Rs. 12,56,000/- without considering his SCN dt.
16.09.2019 issued for Rs. 3,90,000/-.
On the facts and in the circumstances of the case, the Ld. C.I.T.(Appeals)
(NFAC) erred in upholding the non-speaking order passed by Id. A.O. on the basis of information available on record about filing of return of income, nature and source of receipt of money and how income is taxable u/s 69A of the Income Tax Act, 1961.”
2. The registry has informed that the present appeal has been filed on 11.11.2024 against impugned order dated 14.09.2023 of first-appeal passed by Ld. CIT(A), therefore it is delayed by about 1 year and hence time-barred.
Ld. AR for assessee firstly submitted that the assessee has filed an application for condonation of delay supported by a notarized affidavit. The affidavit so filed is scanned and re-produced below:
Page 4 of 12 having rural background and does not have sufficient knowledge of tax laws and technological systems (Para 2). That while conducting proceedings of first-appeal, Ld. CIT(A) served initial three notices of hearing dated 11.01.2021, 28.07.2023 and 10.08.2023 to the email id: mahendramittalandco@gmail.com which belonged to assessee’s previous counsel who never informed to assessee (Para 5, 6, 7). That, although the Ld.
CIT(A) served fourth and last notice of hearing dated 06.09.2023 to assessee’s email id: awadeshrathore1994@gmail.com besides serving on previous counsel but this last notice required assessee to submit reply by 11.09.2023 and since the assessee does not check-up his email a/c regularly, the email could not be noticed and reply could not be filed to CIT(A) which has led the CIT(A) to pass ex-parte order on 14.09.2023 of first-appeal (Para 8, 9, 10). Ld. AR submitted that neither the notices of hearing nor the impugned order passed by CIT(A) was physically served upon assessee. He submitted that the impugned order came to the knowledge of assessee only on 25.09.2024 when the recovery steps were taken by department through inspector (Para 11). That prior to 25.09.2024, the assessee had no knowledge of impugned order having been passed by CIT(A) as ex-parte (Para 13). Immediately, the assessee paid fee on 11.11.2024 and filed present appeal on 11.11.2024. This has only resulted in delayed filing of appeal. He very humbly submitted that there is no lethargy, negligence, mala fide intention or ulterior motive of assessee in Page 5 of 12 of delay. He submitted that the sole reason of delay is as explained by assessee in the affidavit and therefore the delay should be condoned having regard to the reason explained and in the interest of justice.
3. Ld. AR next submitted that that the AO has, in the assessment framed, made an addition of Rs. 12,56,000/- for unexplained deposit in “Narmada Jhabua Grameen Bank, Kukshi – A/c No. 601130110000019” but the said a/c belongs to some other person and not to assessee which is evident from following certificate issued by bank to assessee:
Page 7 of 12 impugned bank a/c picked by AO for making addition does not belong to assessee. Therefore, the case of assessee has a strong merit. He made a further request that since the assessment-order passed by AO is u/s 144 and the assessee is filed a new evidence in the form of bank certificate (as re-produced above), the present matter may be remanded to the file of AO for adjudication afresh.
Ld. DR for Revenue left the issue of condonation of delay for the wisdom of bench without raising any objection. He, however, agreed that the present case is suitable for remanding back to the file of AO since (i) the assessment-order is ex-parte u/s 144, (ii) the assessee has filed a new evidence by way of bank-certificate, and (iii) the assessee is admitting to possess two PANs.
We have considered the explanation advanced by assessee in the solemnized affidavit 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 as narrated above. We find that section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if Page 8 of 12 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.
So far as merit of the case is concerned, we find that the assessee has admitted in Para 3 of affidavit that he is holding two PANs: CDSPR2994D and BOZPA9769J. The assessee has further admitted to have filed income- tax return of AY 2017-18 under consideration on 16.03.2018 in PAN:
CDSPR2994D, the following document being acknowledgement of return is filed in Paper-Book according to which the assessee disclosed a total income of Rs. 3,04,290/- and paid tax liability of Rs. 470/- in PAN: CDSPR2994D:
Page 10 of 12 accounts in another PAN: BOZPA9769J. We also take note that the impugned assessment-order has been passed by AO in PAN: BOZPA9769J and the AO has only assessed the deposit in bank a/c without being aware of other PAN: CDSPR2994D held by assessee. Thus, the impugned addition of Rs. 12,56,000/- has been assessed in PAN: BOZPA9769J and the income of Rs. 3,04,290/- belonging to very same person/assessee has been separately assessed in PAN: CDSPR2994D. Since the assessee-individual is one and same, there cannot be piecemeal assessments, the ‘total income’ of assessee has to be assessed under the provisions of Income-tax Act, 1961.
Further, the assessee has also filed a new evidence of bank-certificate as discussed earlier. Therefore, looking to all these aspects, the present case is fit for remand to the file of AO for a vehement adjudication.
We, however, note that the assessee has not participated before both of the lower-authorities due to which the lower authorities had to pass ex- parte orders. Further, the assessee has filed return in one PAN and claiming to hold bank a/cs in other PAN. Because of these lapses which are attributable to assessee, the present case has to be remanded to the file of AO for a fresh adjudication. Further, as noted earlier, there is a delay of about 1 year in filing present appeal. Therefore, taking into account these
Page 11 of 12 file of AO subject to payment of a cost of Rs. 7,000/- by assessee to “Prime Minister National Relief Fund” and submission of proof before AO. Needless to mention that the AO shall give necessary opportunity of hearing to assessee and pass an appropriate order. The assessee is also directed to 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 23/06/2025