VIPULBHAI VITTHALBHAI KAKADIA,SURAT vs. ITO, WARD 3(1)(5), SURAT

आदेश / O R D E R PER BIJAYANANDA PRUSETH, AM: This appeal by the assessee emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’) dated 27.03.2024 by the Commissioner of Income-tax, Appeal, Addl/JCIT(A)-2, Kolkata [in short, ‘Ld. CIT(A)’] for the assessment year (AY) 2010-11, which in turn arises out of assessment order passed by Assessing Officer (in short, ‘AO’) u/s 143(3) r.w.s. 147 of the Act dated 28.12.2017. 2. Grounds of appeal raised by the assessee are as under: “1. On the facts and in the circumstances of the case as well as law on the subject, the learned Assessing Officer has erred in re-opening the assessment u/s 147 of the Act and issuing notice u/s 148 of the Act. 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the

ITA No.543/Srt/2025 A.Y 10-11 Vipulbhai V Kakadia action of the Assessing Officer in considering the section 44AF of the Income Tax Act, 1961 which does not mandatorily require to maintain books of account as per the Act and making addition of Rs.3,83,682/- estimated profit of 10% on the total turnover of Rs.38,34,682/-. 3. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of Assessing Officer in making addition of Rs. 89,200/- without considering the submission made by the AR of the appellant that the sources of investment in demat account is out of earlier savings and cash withdrawals from bank. Hence, addition of Rs.89,200/-required to be deleted. 4. On the facts and circumstances of the case as well as law on the subject, the learned Assessing Officer has erred in initiating penalty proceedings u/s 271(1)(c) of the Income Tax Act, 1961. 5. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has not offered adequate opportunities to hear, hence, the case may please be set aside and restored back to the CIT(a)) or AO for sake of the interest of natural justice. 6. It is therefore prayed that the above additions may please be deleted as learned Members of the Tribunal may deem it proper. 7. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of appeal.” 3. The appeal filed by the assessee is late by 340 days. The assessee has filed an affidavit for condonation of delay in filing of appeal before this Tribunal. The assessee submitted that during the filing of appeal before CIT(A), his consultant had clearly mentioned the email ID of his counsel (i.e., my_client52@yahoo.com) for the purpose of communication. The order of CIT(A) was passed and uploaded in ITBA portal on 27.03.2024. His counsel did not check the email regularly and owing to this, assessee was not aware about the passing of appellate order. The assessee came to know of the appellate order only when he filed return of income for AY 2025-26. Thereafter, the appellant filed the appeal. The assessee submitted that the delay in filing

ITA No.543/Srt/2025 A.Y 10-11 Vipulbhai V Kakadia appeal was neither wilful nor deliberate and that he was prevented by sufficient cause for not filing the appeal in time. He requested that in the interest of justice, the delay may be condoned and appeal may be decided on merit. 4. On the other hand, Ld. Sr. DR for the Revenue opposed the prayer of the assessee for condonation of delay. He, however, stated that the Bench may decide the preliminary issue as it thinks fit. 5. We have heard both parties on this preliminary issue of condonation of delay. In the affidavit, the assessee stated that he was unaware of the appellate order and could not file appeal in time before the Tribunal. We find that the delay was neither deliberate nor intentional and was due to circumstances beyond the control of the appellant. The reasons given would constitute sufficient cause for delay in filing the appeal. We, therefore, condone the delay and admit the appeal for hearing. 6. Brief facts of the case are that as per the AIR information, the assessee transacted in the Commodity Exchange, but during the year did not file the return of income. The assessee was issued a letter seeking information, which was not responded to. Therefore, the case was re-opened u/s 147 of the Act and notice u/s 148 of the Act was issued on 28.03.2017. Various opportunities of hearing were provided to the assessee and the AO added Rs.89,200/- on account of investment in Demat account. He had not explained the source from which the payment of Rs.89,200/- was made. The AO also added

ITA No.543/Srt/2025 A.Y 10-11 Vipulbhai V Kakadia Rs.3,83,468/-, being profit @ 10% of the turnover of Rs.38,34,682/-. Total income was accordingly determined at Rs.4,72,670/-. 7. Aggrieved by the order of the AO, assessee preferred appeal before CIT(A). After considering the reply of the assessee, the CIT(A) confirmed the order of the AO and dismissed the appeal. 8. Aggrieved by the order of CIT(A), the assessee filed appeal before this Tribunal. The Learned Authorized Representative (Ld. AR) of the assessee, at the outset, did not press ground No.1. He submitted that the re-opening is not valid because the income mentioned in the reasons recorded for re-opening is below the threshold limit of Rs.1,00,000/-. Hence, the re-opening beyond 4 years is not liable to be sustained. 9. On the other hand, Ld. Sr. DR supported the order of lower authorities. He submitted that the Bench may decide the matter as it thinks fit. 10. We have heard both the parties and perused the materials available on record. It is seen that the case was re-opened for verifying the income from transaction with Multi Commodity Exchange (MCX). The assessee made investment of Rs.89,200/-, the source of which could not be explained. The AO has added Rs.89,200/- as unexplained investment in the assessment order. As per provisions of section 149(1)(b) of the Act, no notice u/s 148 shall be issued for relevant assessment year, if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax, which has escaped assessment amounts to or is likely to

ITA No.543/Srt/2025 A.Y 10-11 Vipulbhai V Kakadia amount to Rs.1,00,000/- or more for that year. In the instant case, the notice u/s 148 of the Act was issued on 28.03.2017, i.e., after 4 years from the end of AY 2010-11. The amount chargeable to tax was Rs.89,200/-, which is below the threshold limit of Rs.1,00,000/-. The Ld. Sr. DR has not controverted the above fact. Hence, re-opening was not permissible as per the clear provisions of the Act. Hence, the notice u/s 148 of the Act is invalid and the consequential orders of AO and CIT(A) do not survive. Accordingly, the appeal is allowed. 11. In the result, appeal filed by the assessee is allowed. Order pronounced in accordance with Rule 34 of ITAT Rules, 1963 on 24/11/2025 in the open court. Sd/- Sd/- (SANJAY GARG) (BIJAYANANDA PRUSETH) �याियक सद�य/JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER सूरत/Surat �दनांक/ Date: 24/11/2025 Dkp Outsourcing Sr.P.S*/SS आदेश क� �ितिलिप अ�ेिषत/ Copy of the order forwarded to :  अपीलाथ�/ The Appellant  ��यथ�/ The Respondent  आयकर आयु�/ CIT  आयकर आयु�(अपील)/ The CIT(A) िवभागीय �ितिनिध, आयकर अपीलीय आिधकरण, सूरत/ DR, ITAT, SURAT   गाड� फाईल/ Guard File

By order/आदेश से, // TRUE COPY // सहायक पंजीकार आयकर अपील�य अ�धकरण, सूरत