VISHAL ENTERPRISE,VYARA vs. NFAC,DELHI, ITO WARD 1, BARDOLI, INCOME TAX OFFICE-BARDOLI

Even otherwise on the facts and circumstances of the case as well as law on the subject the assessing officer has erred in taxing the income u/s 115BBE @ 77.25% in a retroactive manner by applying the duly substituted S. 115BBE inserted retrospectively instead of taxing it at 35.54% as per the old provisions of S.115BBE.

It is therefore prayed that the assessment framed u/s 147 r.w.s. 144 r.w.s. 1448 of the I.T. Act may please 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 the course of assessment proceedings.”

The facts of the case in brief are that the assessee-firm had filed his return of income for the AY.2017-18 on 26.03.2018, declaring total income at Rs.1,23,130/-. The Assessing Officer (in short, ‘AO’) received an information that assessee had made cash deposited of Rs.13,00,000/- during the demonetization period i.e., from 09.11.2016 to 31.12.2016. The AO re-opened the case u/s 147 and issued notice u/s 148 on 30.07.2022 after obtaining necessary approval. However, the assessee-firm had not filed return of income for AY.2017-18 in response to the said notice. Various notices u/s 148 and 142(1) and show cause notice were issued to the assessee, but there was non-compliance to the notices. The AO asked assessee as to why the assessment should not be completed u/s 144 of the Act. In absence of the requisite details, the AO treated Rs.13,00,000/- u/s 69A as unexplained cash deposits and added the same to the total income of .2017-18 Vishal Enterprise the assessee. The AO assessed the total income of Rs.14,23,130/- against the returned income of Rs.1,23,130/- u/s 147 r.w.s. 144 r.w.s. 144B of the Act.

Aggrieved by the order of AO, the assessee filed this appeal before the CIT(A). The CIT(A) observed that assessment order was passed on 08.05.2023, but the appellant had filed appeal on 01.03.2024, which was delayed by 329 days. The appellant had not even acknowledged this delay in the Form No.35. He held that in condoning the delay, the appellate authority must be satisfied that there has been due diligence on the part of the appellant and it was not guilty of negligence. The CIT(A) relied upon various decisions and observed that it is a settled position that in case of delay, the assessee had to make out case of having sufficient cause and producing evidence towards the same to strengthen the plea of the assessee. The appellant had not made any submissions during appellate proceedings. The CIT(A) held that the appellant had not made a case for having “sufficient cause” for delay in filing appeal. The appeal filed by the appellant was held to be invalid and non-maintainable, being out of time. He, therefore, did not admit the appeal and dismissed the same in limine.

Aggrieved by the order of CIT(A), the assessee filed appeal before the Tribunal. The learned Authorized Representative (ld. AR) of the assessee submitted that in Form No.35, at column no.11, the assessee had stated that “Due to limited characters provided in this E-form, the full text of Statement of Facts is attached in other attachments which may be considered for the purpose of appeal”. He submitted that the reasons for the delay was mentioned at para 7 of the statement of facts. He fairly admitted that in the column no.14, it was 3 .2017-18 Vishal Enterprise submitted that there was no delay in filing appeal. However, the same was an inadvertent mistake because the reasons for delay had already been mentioned in the statement of facts. He requested that another opportunity may be given to the assessee.

On the other hand, learned Senior Departmental Representative (ld. Sr. DR) of the revenue submitted that the Bench may decide the matter as deemed proper.

We have heard both the parties and perused the materials available on record. The CIT(A) has refused to condone the delay and held that the appeal is invalid and non-maintainable being out of time. Since the appeal was dismissed at the threshold, no comments were made on the merits of the case. The ld. AR submitted that the CIT(A) has not considered the reasons given by the assessee for delay in filing the appeal. He submitted that in Form No.35, the assessee at column no.11 had stated that the Statement of Facts are separately attached. He submitted copy of Statement of Facts from which it is seen that the facts are at para 1 to 6 of the said attachment. At para 7, the assessee had given the reasons for condonation of delay, which may be reproduced below for ready reference: “Condonation of delay: 7. It is to be noted that there is a delay of 298 days in filing the appeal. The delay is due to the fact that the primary e-mail id i.e., desaipr77970@gmail.com mentioned on ITBA portal was inoperative as it is of previous advocate of the assessee. Thereafter, the email-id was changed to iggandhi1958@gmail.com. Hence, the assessee was not aware about the assessment order passed by Ld. Assessing Officer. Assessee was in receipt of order u/s 271AAC dated 22.11.2023 and on receipt of the same then the assessee came to know about the assessment order passed by Ld. Assessing Officer. Your good self is kindly requested that the delay may please be condoned.”

In the result, appeal of the assessee is allowed for statistical purpose. Order is pronounced in the open court on 08/01/2025.