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Facts
The assessee's appeal before the Tribunal was filed with a delay of 17 days, attributed to the assessee not receiving the order from the lower authorities and discovering it later via the ITBA portal. The appeal challenges the CIT(A)'s order confirming an addition of Rs. 15,05,680/- under section 69A and taxing it under section 115BBE at a higher rate.
Held
The Tribunal condoned the delay of 17 days, finding it not inordinate or intentional. However, since both the Assessing Officer and CIT(A) passed ex-parte orders due to lack of proper explanation/evidence from the assessee, the matter was restored back to the Assessing Officer for fresh adjudication.
Key Issues
Whether the delay in filing the appeal should be condoned, and if the matter should be remanded to the Assessing Officer for fresh consideration due to ex-parte orders passed by lower authorities.
Sections Cited
69A, 115BBE, 144, 254(1)
AI-generated summary — verify with the full judgment below
Assessee represented by Shri Mehul Shah, C.A.. Department represented by Shri Mukesh Jain, Sr.DR Appeal instituted on 13/02/2024 Date of hearing 10/12/2024 Date of pronouncement 21/01/2025 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) [in short, the ld. CIT(A)] dated 28/11/2023 for the Assessment Year (AY) 2017-18. The assessee has raised following grounds of appeal:
1. On the facts and circumstances of the case as well as law on the subject, the ld. CIT(A) ought to have admitted the additional evidence under rule 46A.
2. On the facts and circumstances of the case as well as law on the subject, the ld. CIT(A) has erred in confirming he action of Assessing Officer by making an addition of Rs. 15,05,680/- on account of alleged unexplained money u/s 69A.
3. On the facts and circumstances of the case as well as law on the subject, the ld. ld. CIT(A) has erred in confirming the action of Assessing Officer by taxing the addition by taking the rate @ 77.25% by attracting S. 115BBE instead of normal tax rate.
4. Even otherwise the amendment in the provision of Section 115BBE taxing at higher rate @ 60% cannot be applied retrospectively.
Pareshbhai Khodabhai Godhani Vs ITO 5. It is therefore prayed that assessment framed u/s 144 of the Act may kindly be quashed and/or addition made by assessing officer may please be deleted.
Appellant craves leave to add, alter or delete any ground(s) either before or in course of hearing of the appeal.”
Rival submissions of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee fairly submits that there is delay of 17 days in filing appeal before the Tribunal. Impugned order was passed by the ld. CIT(A) on 28/11/2023, however, this appeal is filed on 13/02/2024. The assessee has already filed application for condonation of delay in the form of affidavit of assessee. The ld. AR of the assessee submits that the delay in filing appeal is neither intentional nor deliberate. The impugned order was not served upon the assessee through e-mail address, which was provided in Form-35 at the time of filing appeal before the ld. CIT(A). Consultant of assessee who represented the assessee before the ld. CIT(A) opened ITBA Portal on 05/02/2024 to checked order if any, is passed in this case or not. On opening ITBA Portal on 05/02/2024, his consultant found that the appeal has already been dismissed vide order dated 28/11/2023. The assessee immediately filed appeal before this Tribunal. Though, there is no delay in filing appeal from the date of knowledge of impugned order, yet for abandon caution, the assessee has filed application for condonation of delay. The delay is not inordinate. The assessee has good case on merit would suffer prejudice if delay is not condoned in his case and the appeal is not adjudicated on merit. On merit of the case, the ld. AR of the assessee submits that the Assessing Officer while passing the assessment order made addition on account of cash deposit during demonetization period. The Assessing Officer recorded that in response to show cause notice, the assessee failed to furnish source of cash 2 Pareshbhai Khodabhai Godhani Vs ITO deposit and in absence of any explanation, entire cash deposit during demonetization period was added under Section 69A of the Income Tax Act, 1961 (in short, the Act). Before the ld. CIT(A), the assessee filed his submissions with various details, however, the same were not considered by the ld. CIT(A). The assessee also furnished written submission on ITBA Portal, copy of which is placed on record at page No. 16 to 21 of paper book. The ld. CIT(A) not considered such submission and upheld the order of Assessing Officer. The assessee has not received any notice on e-mail mentioned on Form-35, however, his consultant has furnished detailed written submission. Such fact is mentioned by assessee in his affidavit for condonation of delay. The ld. AR of the assessee submits that there was total withdrawal from various bank accounts of Rs. 12,35,400/-. The assessee was having opening cash in hand of Rs. 2,13,101/-, thus there was total cash in hand of Rs. 15,13,990/- was available with the assessee. The assessee has duly explained cash deposit and no addition is liable to be made. The Assessing Officer taxed the addition under Section 115BBE of the Act. Enhanced rate of tax under Section 115BBE is not applicable retrospectively as has been held in a series of decisions by this Bench as well as by other Benches of the Tribunal.
On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue submits that on the issue of condonation of delay, the Bench may take appropriate view in accordance with law. So far as addition of cash deposit is concerned, the Assessing Officer passed assessment order under Section 144 of the Act. The assessee has not explained as to why he has not made any compliance before the Assessing Officer. Again before the ld. CIT(A), Pareshbhai Khodabhai Godhani Vs ITO no submission was made as recorded in para 3 of the impugned order. Since there is no consideration of fact as argued by the ld. AR of the assessee by the lower authorities. The ld. Sr.DR for the revenue submits as the assessee has not explained the cause of non-appearance before the lower authorities. Further no proof/evidence is filed for furnishing details/submissions before the ld. CIT(A), therefore, the assessee is not eligible for any relief. In alternative submission, the ld. AR of the assessee submits that in case, this Bench is of the view that the assessee deserve any leniency, the matter may be restored back to the file of ld. CIT(A) with specific direction to the assessee to make proper compliance that too with cost.
We have considered the submissions of both the parties and have gone through the orders of the lower authorities carefully. First we shall consider the plea of condonation of delay, we find that the impugned order was passed on 28/1/2023, however, the present appeal is filed on 13/02/2024, the system has calculated delay of 17 days in filing appeal. As recorded above, the ld. AR of the assessee submitted that physical copy of impugned order was not served on the assessee and that the assessee came to know about dismissal of appeal only on 05/02/2024, when ITBA portal was checked. Such fact is duly mentioned by assessee in his affidavit. Considering the fact that the delay is not inordinate and seems to be not intentional, therefore, delay of 17 days in filing appeal is condoned. Now adverting to the merit of the case.
We find that the Assessing Officer as well as the ld. CIT(A) both the authorities have passed ex parte orders for want of proper reply/explanation/evidence, therefore, we instead of considering various submissions and evidences Pareshbhai Khodabhai Godhani Vs ITO submitted by the ld. AR of the assessee, we deem if appropriate to restore the matter back to the file of Assessing Officer to decide the issue afresh in accordance with law. Needless to direct that before passing the order on merit, the Assessing Officer shall grant reasonable opportunity of hearing to the assessee. The assessee is also directed to be more vigilant in future and in making proper compliance and not to make any default in responding the notices issued by the Assessing Officer. With this direction, the grounds of appeal
raised by the assessee are allowed for statistical purposes.