HEBBALE JAVARAPPA SANTHOSH KUMAR,PRAVEEN WINES I B ROAD, KUSHALNAGAR vs. INCOME TAX OFFICER WARD MADIKERI, MADIKERI KARNATAKA

The brief facts of the case are that the assessee is running a liquor shop and he filed his return of income on 05/01/2018. Thereafter the case was selected for scrutiny under CASS and notice u/s. 143(2) was issued. Subsequently, notice u/s. 142(1) was issued. Two more notices were issued to furnish the details called for in the notice dated 06/08/2019. The assessee had not responded to the said notices and therefore the AO

The said order is under challenge before this Tribunal.

At the time of hearing, the Ld.AR submitted that the assessee is not familiar with the faceless proceedings and he is depending on the accountant for filing the return, etc. The said accountant had not intimated anything about the notices issued by the AO and also the order passed by the AO and therefore the assessee has no knowledge about the assessment proceedings. The Ld.AR further submitted that only after the bank account has been attached, the assessee came to know about the assessment order and thereafter through the another accountant, the portal was viewed and the assessment order was downloaded. The Ld.AR also submitted that the assessment order was passed on 12/12/2019 and thereafter from the month of March, 2020, the Government of India had declared lockdown and therefore the lockdown period which was also extended by the Hon’ble Supreme Court could not be taken into consideration while calculating the said delay. The Ld.AR on merits submitted that there is no underreporting of any turnover since the assessee’s sister-in-law’s business income were also deposited in the bank accounts of the assessee and therefore, the excess turnover was available. The Ld.AR further submitted that the said turnover of his sister-in-laws were separately recorded in her books of accounts and the same were also duly audited and the said amount was also offered to tax by the sister-in-law and therefore submitted that the inclusion of the said income into the account of the assessee would amounts

The Ld.DR submitted that the delay is not a small one and therefore the said delay need not be condoned and prayed to dismiss the appeal.

We have heard the arguments of both sides and perused the materials available on record.

In the present appeal, the assessment was made by the AO by taking the difference between the turnover reported and the turnover available in the audit report as the underreported turnover and based on that, the income has been estimated by the AO. The AO had arrived the said conclusion since the assessee had not responded to any of the notices. Before the Ld.CIT(A), the assessee filed an appeal with a delay of 2216 days and also enclosed an application to condone the said delay. We have also considered the submission made by the Ld.AR that even though the assessment order was passed on 12/12/2019, the delay period falls under the lockdown period of the covid19. We have also considered the suomto order of the Hon’ble Supreme Court in which the Hon’ble Supreme Court has extended the period of limitation upto 31/05/2022 and therefore if we exclude the said covid19 period, the delay would be about 1771 days. The assessee’s contention that he is not familiar with the faceless proceedings and also because of the covid19 lockdown for almost 2 years, there would be every possibility that the assessee might have missed the deadline for filing the appeal before the Ld.CIT(A). We have also considered the documents filed by the assessee in the paper book in which the assessee had filed the copies of his books of accounts and the copies of the books of accounts of the assessee’s sister-in-law and also bank statements of Bank of Baroda and State Bank of India to show that the turnover of the assessee’s sister-in-law were also treated as the turnover of the assessee.

Further, in the paper book, the Ld.AR filed the submissions made before the Ld.CIT(A) and also the copies of the various documents when the

We therefore set aside the order of the Ld.CIT(A) by condoning the delay in filing the appeal before it and also set aside the order of the AO dated 12/12/2019 and remit this issue to the file of the AO for doing the assessment afresh after considering the documents filed by the assessee and thereafter make the assessment in accordance with law after hearing the assessee.

In the result, the appeal filed by the assessee is allowed for statistical purposes.