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Facts
The assessee did not file an income tax return for AY 2013-14. The case was reopened under Section 147 for unexplained cash deposits of Rs. 26,55,000/-, and the Assessing Officer completed the assessment under Section 144, adding Rs. 22,00,400/- as unexplained income due to non-compliance. The assessee appealed to the CIT(A), filing additional evidence, and the CIT(A) set aside the assessment, remanding the case to the AO for fresh assessment. Subsequently, the assessee filed an appeal with the ITAT, which was delayed by 121 days, seeking condonation of the delay based on professional advice.
Held
The Tribunal condoned the 121-day delay in filing the appeal, finding it to be bonafide and attributable to professional advice. The Tribunal upheld the CIT(A)'s decision to set aside the assessment and remand the case to the AO for fresh assessment, considering the original assessment was completed under Section 144 and additional evidence was submitted for the first time before the CIT(A). This remand ensures natural justice and allows the AO to verify the new evidence and pass a speaking order as per Rule 46A(3) of the IT Rules.
Key Issues
Whether the 121-day delay in filing the appeal to the ITAT should be condoned. Whether the CIT(A) was correct in setting aside the best judgment assessment under Section 144 and remanding the case to the AO for fresh assessment due to the filing of additional evidence.
Sections Cited
Section 142(1), Section 250, Section 253(3), Section 144, Section 147, Section 148, Section 251, Rule 46A(3) of IT Rules, 1962
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, RAIPUR BENCH “SMC”, RAIPUR
Before: SHRI PARTHA SARATHI CHAUDHURY
आदेश / ORDER
PER PARTHA SARATHI CHAUDHURY, JM
The present appeal preferred by the assessee emanates from the order of the Ld.CIT(Appeals)/NFAC, Delhi dated 30.03.2025 for the assessment year 2013-14 as per the grounds of appeal on record.
2. At the very outset, the Ld. Counsel for the assessee submitted that the present appeal is time barred by 121 days. Elaborating the reasons leading to the said delay, the Ld. Counsel has submitted condonation petition a/w. affidavit dated 07.10.2025. For the sake of completeness, the affidavit dated 07.10.2025 is extracted as follows: (relevant extract) “5. That during the appeal proceedings I duly participated and filed written submission both on legal grounds and on merits.
6. That the ld. Commissioner of Income-tax (Appeals), NFAC has decided the appeal on 30/03/2025 and was pleased to set-aside the matter to the ld. Assessing Officer for making, fresh assessment. However, the id. CIT(Appeals) did not adjudicate the legal grounds.
Initially, I was advised to comply with the notice issued u/s.142(1) r.w.s. 250 of the Abt. However, upon consulting another counsel practicing in the Hon'ble High Court, I was advised to prefer a second appeal on legal grounds, as in his opinion, such legal issues may not be possible to be raised at a later stage if conceded in the first round.
8. That as per my understanding there are fair chances of substantial relief in further appeal.
That the order of id. C1T(A) is dated 30/03/2025. As per provisions of section 253(3) of the Act the appeal ought to have been filed within two months from the end of month in which the order sought to appeal against was passed i.e. by 31/05/2025. However, owing to the earlier professional advice the appeal has now been filed after a delay of 121 day.
The delay occurred solely due to the professional advice received from the tax consultant. There was no mala fide intention and the cause constitutes sufficient reasons for condonation.
That in connection with settled principle/legal precedents, I rely on the following cases:- a) Vijay Vishin Meghani vs DCIT/ACIT (Bombay High Court) in iTA 493 508/2015, wherein the delay of 2984 days was condoned for the reliance was placed on advise of intinikar bona fide professional constitutes as sufficient cause. (b) Vinay Ramsha.tandas Agarwal vs PCIT (Nagpur Tribunal) in wherein it was held that where assessee believes appeal was to be filed after set-aside assessment; there is no mala fide intent.
That in view of above facts and circumstances it is humbly prayed that the Hon’ble Tribunal may be pleased to condone the delay and admit the appeal for adjudication in the interest of justice.”
The Ld. Sr. DR has not filed counter affidavit regarding condonation of delay. It was submitted by her that delay may be condoned since conduct of the assessee was bonafide and the said delay was occurred due to professional advise wrongly given to the assessee as enumerated in the affidavit.
Having heard the parties herein and considering the contents of the affidavits, I find merit in the prayer made by the assessee that such delay of filing appeal before the Tribunal was not deliberate or malafide and accordingly, the said delay of 121 days in filing of the appeal is condoned in view of the following judicial pronouncements viz. (i) Vidya Shankar Jaiswal Vs. ITO, Ward-2, Ambikapur, Civil Appeal Nos……………../2025 [Special Leave Petition (Civil) Nos. 26310- 26311/2024, dated 31.01.2025; (ii) Jagdish Prasad Singhania Vs. Additional Commissioner of Income Tax (TDS), Raipur (C.G.), TAX Case No.17/2025, dated 24.02.2025, and (iii) Inder Singh Vs. the State of Madhya Pradesh, Civil Appeal No…………/2025, Special Leave Petition (Civil) No.6145 of 2024, dated 21st March, 2025.
Coming to the merits of the matter, it is noted that in this case assessment has been completed by the A.O u/s.144 of the Act and in view thereof, the Ld. CIT(Appeals)/NFAC has held and observed as follows:
“The facts of the case are that the assessee did not file return of income for AY 2013-14. Assessee's case was reopened u/s.147 on the ground that assessee had deposited cash amounting to Rs.26,55,000/- during FY 2012-13. Notice u/s.148 was issued and served on the assessee. No return was filed in response. Assessee filed explanation for cash deposits to the tune of Rs.4,54,600/-. Assessee did not comply with subsequent notices and letters issued and served upon the assessee. No explanation nor evidence in respect of unexplained cash deposits to the extent of Rs.22,00,400/- was furnished. A.O added the said amount to the income of the assessee in order in assessment u/s.144. Aggrieved, assessee is in appeal. In appeal, the assessee has sought to file additional evidence. With respect to cases where appeal is against assessment order passed as best judgement case u/s 144 of the Act, considering the huge pendency of appeals and disputed tax demands at the Commissioner (Appeals) stage, with effect from 01/10/2024, vide amendment of section 251 of the Act. the Commissioner (Appeals) is empowered to set aside the assessment and refer the case back to the AO for making a fresh assessment. The present case, where the assessee has not complied with notices in assessment proceedings but has sought to file additional evidence in appeal is a fit case for setting aside the assessment and referring the case back to the AO for making a fresh assessment. Accordingly the assessment is set aside and case referred back to AO for making a fresh assessment. As a result, the appeal is disposed of by setting aside the assessment order.”
As is discernable from the aforesaid findings of the Ld. CIT(Appeals)/NFAC, since the assessment was completed u/s.144 of the Act and that also, certain additional evidences were filed before the first appellate authority, therefore, the Ld. CIT(Appeals)/NFAC had invoked the power as mandated in Section 251 of the Act empowering the said authority to set-aside the assessment order and refer the same to the A.O for making fresh assessment. That on the ground of natural justice as well, since there was no compliance before the A.O and all the documents have been submitted before the Ld. CIT(Appeals)/NFAC, therefore, even in terms with Rule 46A(3) of the IT Rules, 1962, ground verification of such additional evidences is required and a speaking order from the A.O considering those evidence is essential in order to adjudicate the matter by the first appellate authority as per provisions of the Act. Hence, I do not find any infirmity with the findings of the Ld.CIT(Appeals)/NFAC which is hereby upheld.
7. As per the above terms, grounds of appeal raised by the assessee stands dismissed.
In the result, appeal of the assessee is dismissed. Order pronounced in open court on 26th day of November, 2025.