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Facts
The assessee did not file an income tax return for AY 2011-12, and cash deposits of Rs.16,01,000 in their bank account were treated as unexplained investment. The case was reopened under section 147, and notices were issued, but the assessee failed to comply or provide explanations. Consequently, the Assessing Officer assessed the total income at Rs.32,82,663, initiating penalty proceedings.
Held
The Tribunal acknowledged the delay in filing the appeal was not intentional and due to lack of guidance from the previous tax consultant. Considering the principles of natural justice and the interest of substantial justice, the Tribunal decided to condone the delay, subject to the assessee paying a cost of Rs.15,000 to the Prime Minister's National Relief Fund.
Key Issues
Whether to condone the significant delay in filing the appeal and whether to set aside the order of CIT(A) and remit the matter back to the AO for fresh consideration.
Sections Cited
253(3), 147, 148, 271(1)(c), 156
AI-generated summary — verify with the full judgment below
Before: MS SUCHITRA RAGHUNATH KAMBLE & SHRI BIJAYANANDA PRUSETH
आदेश / O R D E R
PER BIJAYANANDA PRUSETH, AM:
This appeal emanates from the order dated 17.07.2023 passed by the Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [in short “the CIT(A)”] for the assessment year (AY) 2011-12.
The appeal filed by the assessee is late by 549 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 CIT(A) passed order on 17.07.2023 but the order was not served through physical mode. The assessee has studied only up to seven standard, and his tax matter was looked after by Hakim Dani & Associates, who had neither taken follow-up action nor informed about the 2011-12 Bhavin Maheshkumar Desai order of the CIT(A). When he came to know about the outstanding demand pertaining to quantum and penalty, he consulted with Shri Sujesh C. Suratwala, who advised him to file an appeal before the Tribunal. The learned Authorized Representative (ld. AR) of the assessee submitted that the delay was unintentional, bonafide and assessee was prevented by sufficient cause. He requested that the delay may be condoned in the interest of justice.
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. There was a lack of guidance on the part of his earlier tax consultant, who was looking after his tax matter. 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, delays in filling appeal are condoned in the interest of justice subject to payment of cost of Rs.15,000/- (Rupees fifteen thousand only) by the assessee to the credit of the “Prime Minister’s National Relief Fund” within one month from receipt of this order.
2011-12 Bhavin Maheshkumar Desai 5. The brief facts of the case are that the assessee had not filed his return of income for AY 2011-12. As per AIR information, the assessee had deposited cash of Rs.16,01,000/- during the subject AY. As no return of income was filed, the source of cash deposit in his bank account remained unexplained in the hands of the assessee. The case was reopened u/s 147 of the Act by issuing notice u/s 148 of the Act on 22.03.2017 with prior approval of the PCIT, Valsad. Various statutory and show cause notices were issued and served upon the assessee. The assessee has neither complied with any of the notices nor filed any submission. The Assessing Officer (in short, ‘AO’) asked the assessee as to why cash deposit should not be treated as unexplained investment. Again the assessee failed to comply with the same. The AO held that the assessee has nothing to explain regarding the source of cash deposited in savings bank account. In absence of any documentary evidence/details/explanation, the cash and other credit entries of Rs.32,82,663/- (16,01,000 + 16,81,663) in his bank account was treated as unexplained investment. The total income was assessed at Rs.32,82,663/- as against the returned income Nil. Penalty proceedings u/s 271(1)(c) of the Act was initiated for concealment of income.
Aggrieved by the order of AO, the assessee filed appeal before the CIT(A). The CIT(A) reproduced the statement of facts, which is at para 3 of the appellate order. The CIT(A) observed that apart from filing grounds of appeal
and statement of facts, no other detail was provided by the appellant to drive home his contention. He issued three notices of hearing, i.e., 07.01.2020, 2011
12. Bhavin Maheshkumar Desai 24.02.2021 and 28.09.2022, but there was non-compliance on the part of the appellant. Due to the repeated non-compliance, the CIT(A) issued a system generated communicated on 03.11.2022 and notified the appellant with the message “The communication window with the CIT(A) has been enabled”. Again, there was no reply. A final show cause notice was issued on 31.05.2023, which is at para 5.2 of the appellate order. The assessee neither responded nor sought any adjournment. He held that the appellant does not wish to rebut the contentions of the AO. The appellant is also not interested in submitting requisite details to contest the appeal. Accordingly, the CIT(A) dismissed the appeal of the appellant.
The learned Authorized Representative (ld. AR) of the assessee filed a small paper book containing copy of order passed by CIT(A), order passed by AO, demand notice u/s 156, bank statements and copy of 7/12, 8A of agriculture land jointly owned with family members. He submitted that AO has not served any statutory and show-cause notices by physical mode. The CIT(A) also passed the order without providing sufficient opportunity of being heard, which is against principle of natural justice. He submitted that the assessee could not appear before the AO and CIT(A) due to circumstances beyond his control. Therefore, he requested that the order of CIT(A) may be set aside and another opportunity should be given to the assessee to plead his case before the AO.
2011-12 Bhavin Maheshkumar Desai 8. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue supported the orders of lower authorities. He submitted that the Tribunal may decide the matter as it thinks fit.
We have heard both parties and perused the materials available on record. The CIT(E) issued notices on 07.01.2020, 24.02.2021 and 28.09.2022. The CIT(A) observed that the assessee failed to file documentary evidence during the proceedings. The ld. AR has contended before us that the assessee could not submit necessary details due to non-service of the notice issued by the lower authorities. He submitted that the appellant is ready to submit all details and evidences needed by the AO and one more opportunity may be given to the assessee. It is evident from the above facts that assessee could not pursue his case effectively before the AO and CIT(A) by filing necessary evidences and documents. We are of the view that one more opportunity should be given to the assessee to file relevant documents/evidences and to plead his case before the lower authorities. It is settled law that principles of natural justice requires that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much into the merits of the case, in the interest of justice, we set aside the order of CIT(A) and remit the matter to the file of AO with a direction to pass fresh order in accordance with law after granting adequate opportunity of hearing to the assessee. The assessee is directed to be more vigilant and diligent and to furnish all the details and explanations as needed by the AO by not seeking