MUKESHKUMAR BALMUKUND AGARWAL (HUF),SURAT vs. ITO, WARD 1(3)(3), SURAT, SURAT

The appeal filed by the assessee is late by 299 days in terms of provisions of section 253(3) of the Act. The assessee has filed affidavit giving reasons for delay in filing appeal before this Tribunal. In the affidavit, the assessee submitted that the e-mail Id, i.e., ‘vipulgroupvti@yahoo.com’ was mentioned in Form 35. The appellant did not check the e-mail regularly and was unaware about the appellate order. After he came to know about the appellate order, he downloaded it from ITD portal. Thereafter, the appellant consulted a new consultant who advised him to file appeal before the Tribunal. He submitted that the delay was not intentional and it was prevented by sufficient and reasonable cause for not filing the appeal in time.

On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue submitted that the Tribunal may decide the matter as it thinks fit.

We have considered the reasons given by the ld. AR and perused the accompanying documents along with the affidavit. Though the appellant was not alert, the delay in filing the appeal was not deliberate and intentional on the part of assessee. Moreover, the assessee was not going to be benefitted by filling appeal belatedly. It is now fairly settled that when technical consideration and cause of substantial justice are pitted against each other, the cause of substantial justice may be preferred. Hence, delay in filling appeal is condoned in the interest of justice.

The facts of the case in brief are that the assessee filed his return of income on 16.02.2018, declaring total income of Rs.5,78,380/-. Various notices were u/s 143(2) and 142(1) of the Act were issued and served on the assessee. The Assessing Officer (in short, ‘the AO’) noticed that assessee had deposited cash of Rs.27,00,000/- in his bank account maintained with Bank of Baroda. The assessee was asked to explain the source of cash deposits along 2017-18 Mukeshkumar Balmukund Agarwal (HUF) with supporting documentary evidence. It was also seen from the bank statement that the assessee had not deposited any cash other than during the demonetization period. The AO issued a show cause notice on 29.11.2019 and requested to furnish relevant details in support of cash deposits. In response, the assessee filed his reply on 06.12.2019 and stated that there was cash balance of Rs.33,03,053/- as on 01.04.2016 and net cash income of Rs.3,82,255/- as on 09.11.2016. After considering replies of the assessee, the AO held that the assessee failed to satisfactorily explain the source of cash deposits in his bank account. Accordingly, he made addition of Rs.27,00,000/- u/s 69A of the Act and taxed it @60% u/s 115BBE of the Act.

Aggrieved by the order of AO, the assessee filed appeal before the CIT(A). The CIT(A) issued 3 notices on 30.11.2021, 12.09.2023 and 07.02.2024, fixing the date of hearing on 13.12.2021, 20.09.2023 and 14.02.2024. But there was non-compliance on the part of the assessee. The appellant has not furnished any submission before the CIT(A). The CIT(A) referred to the decisions in cases of Estate of Late Tukojirao Holkar vs. CWT, 223 ITR 480 (MP), New Diwan Oil Mills vs. CIT, 296 ITR 495 (P & H), CIT vs. B.N. Bhattacharjee & Another, 118 ITR 461 (SC), wherein it was held that the appeal does not mean, mere filing of the memo of appeal but effectively pursuing the same. He further relied on the decision of Hon’ble Supreme 2017-18 Mukeshkumar Balmukund Agarwal (HUF) Court in case of CIT vs. Durga Prasad More, 82 ITR 540 (SC) and held that the onus of explaining the sources lie heavily on the assessee. The appellant has not bothered to furnish any evidence regarding the sources of the cash, which remained unexplained. Hence, he upheld the addition made by AO and dismissed the appeal of the appellant.

Aggrieved by the order of CIT(A), assessee filed present appeal before the Tribunal. The learned Authorized Representative (ld. AR) of the assessee submitted that the assessee could not represent his case before the lower authorities and the order being ex parte order, stood vitiated on account of violation of principles of natural justice. The ld. AR submitted that during the appellate proceedings, the assessee could not plead his case before the CIT(A) due to circumstances beyond his control. Adequate opportunity of hearing was not given to the assessee; therefore, he requested that one more opportunity should be given to the assessee to plead his case before the CIT(A).

On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue relied upon the orders of lower authorities. He submitted that there was utter negligence on the part of assessee. He, however, would have no objection if the matter is restored to the CIT(A).

In the result, the appeal is allowed for statistical purposes. Order pronounced in accordance with Rule 34 of ITAT Rules, 1963 on 03/12/2025 in the open court.