AVDHESH,PATEL NAGAR vs. INCOME TAX OFFICER, DHAR
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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
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Avdesh ITA No. 802/Ind/2024 – AY 2017-18 appellant has filed his return of income filed through operative PAN No. CDSPR2994D.
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.”
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:
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Avdesh ITA No. 802/Ind/2024 – AY 2017-18
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Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Referring to contents of affidavit, Ld. AR submitted that the assessee is
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
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Avdesh ITA No. 802/Ind/2024 – AY 2017-18 making delay and the assessee does not stand to derive any benefit because
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.
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:
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Avdesh ITA No. 802/Ind/2024 – AY 2017-18 He submitted that the addition made by AO is not sustainable since the
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
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Avdesh ITA No. 802/Ind/2024 – AY 2017-18 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-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:
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Avdesh ITA No. 802/Ind/2024 – AY 2017-18 At the same time, the assessee also admits that he was holding his bank
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
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Avdesh ITA No. 802/Ind/2024 – AY 2017-18 aspects, we are inclined to condone the delay and remand this matter to the
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
Sd/- Sd/-
(PARESH M. JOSHI) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक/Dated : 23/06/2025 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order E COPYSr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore
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