SHIV NATH S/O SH. AMAR NATH,YAMUNANAGAR vs. ITO, WARD -4, YAMUNANAGAR

The present appeal has been filed by the assessee wherein the corre ctness of the order dated 29.12.2021 of CIT(A) (NFAC i.e. National Faceless Appeal Centre) Delhi pertaining to 2011-12 assessment year is assailed on the following grounds :

The relevant facts of the case are that the proceedings u/s 147 of the Act were initiated in the case of the assessee in view of the fact that certain deposits were found to have been made in the assessee's bank account.

The assessee carried the issue in appeal before the First Appellate Authority. The appeal filed was dismissed in limine. The explanation offered for the delay in Column No.15 in the Me mo of Appeal as per Form No.35 pleading lack of exposure etc. was rejected.

Aggrieved the assessee is in appeal before the Tribunal.

The ld. AR referring to the pleadings made in Ground No. 3 & 4above prayed for a set aside of the order wherein the appeal was dismissed in limine. Prayer for a remand back of the issues for a proper consideration on facts was made .

The ld. Sr.DR appearing for the Revenue initially took the position that re mand be made to the CIT(A), however, considering that facts and issues were required to be enquired into by the AO agreed for a remand back to the AO for considering the issues.

A perusal of the record shows that the Assessing Officer rejected the explanation of the assessee in part for want of documentary evidence. The appeal of the assessee was dismissed by the First Appellate Authority on the grounds of limitation. I find on going through the order that there is no discussion therein to the relevant fact namely whether any specific notice was issued to the assessee to address the delay or not ? No mention is found made in the order to the number of days by which the appeal was noticed to be time barred by the ld. First Appellate Authority. It is seen that the assessee on the other hand had appended an explanation to the delay in the Memo of Appeal filed suo-moto. The First Appellate Authority dismissed the explanation appended in the Memo of Appeal filed holding “ that the law assists those who are vigilent and not those who sleep over the night as found in the maxim "Vigilantibus, non dormientibus jura subveniunt". The following explanation that the ITA/95/CHD/2022 A.Y. 2011-12 Page 5 of 11 delay had occurred “due to little knowledge and having no exposure of any person dealing in his totally afraid of income tax demand due on me. My circle is also of illiterate people” was scoffed at and dismissed holding that it was questionable as he was represented by an Advocate and a C.A. at the assessment/First Appe llate stage holding that, “ the rule 'ignorance of the law is no excuse or 'ignorantia juris non-excusat,' or ' ignorantia legis neminem excusat' . The said conclusion on facts as available on record cannot be upheld. The hypertechnical view taken in the case of a daily labour to whom admittedly access to legal remedies etc. cannot be said to be readily available and possibly could be availed of only on account of personal obligations etc. Possibly there is no free legal aid available for tax litigation. Thus, this abrupt dismissal of the appeal ignoring the facts and without affording an opportunity to meet the charge, it is my painful duty to record cannot be upheld. The Tax Authorities like every other Government servants/agency performs State functions for the Government. The Government exists and functions for its citizens. The citizens are taxpayers as well as the marginalized hardworking toiling masses engaged in building a fulfilling life for themselves. Thus, the arbitrary order where without giving notice the explanation appended in the Memo of Appeals was not going to be accepted cannot be ITA/95/CHD/2022 A.Y. 2011-12 Page 6 of 11 upheld. The assessee's appeal has been thrown out noticing that before the Assessing Officer as well as the First Appellate Authority the assessee was represented by a counsel and appeal was filed by a C.A. Such a biased reasoning in a case like the present case reeking of prejudices cannot be upheld. The facts on record cannot be allowed to remain ignored. The said reasoning keeping the social, educational and financial background of the assessee working as a daily wage labourer is patently a very unfair exercise of power to reject the Condonation of delay of a few days ignoring the prayer made in the Memo of Appeal itself.

The hearing in the present appeal was re-fixed as in the appeal as argued on 18.05.2022 the only prayer of the assessee was for a remand back. However, while finalizing the order considering the facts as consistently available on record, the hearing was re-fixe d for the benefit of the Revenue to argue why the appeal on facts instead of remand back as per the counsel’s prayer infact should not be allowed.

The ld. Sr.DR relied upon the order and submitted that the evidences of tuition/coaching and other incomes of the family members could not be satisfactorily demonstrated by the assessee and these may be verified.

No further arguments were made.

I find on a consideration of the facts on record and addressing the social milieu from which the assessee comes from, that to further burden the assessee or the tax administration in the peculiar facts would not only be an unfair order but also be detrimental and wasted exercise for all concerned. Keeping in view the realities and aspirations of the rising India and the efforts of the toiling masses where certain families instead of sitting in apathy for the State Administration to dole out State largesse the enterprising self respecting population also consists of such citizens who instead choose to make their own efforts to avail of the opportunities and advantages provided by educating their children. There are sections of Society who choose to involve every family member in industriously working and to ITA/95/CHD/2022 A.Y. 2011-12 Page 9 of 11 simultaneously studying to ensure a proper and a decent livelihood for the next generation. To my mind, this spirit of the rising India should not be crushed by a mechanical effort of looking for evidences in 2022 for an activity which culminated in rejection of visa application of assessee's daughter on 15 t h July, 2010. As per record, the assessee has explained the deposits stating that these were made to “meet study visa requirement on the basis of New FDR made on 15.04.2010, we have opened Overdraft Account no.. 65082236095 with same Bank on 16.04.2010 for Rs. 6,30,000/ from which Cash is withdrawal on 17.04.2010, 22.04.2010 and 21.07.2010. Similarly cash is deposited on 01.06.2010 against cash withdrawals on 17.04.2010 & 22.04,2010. This overdraft account is closed on 15.10.2010 by closing FDR made on 11.04.2010. Balance amount was withdrawal in cash (Copy of overdraft account is being enclosed herewith). My daughter was not able to get opportunities to go abroad for student visa. (Copy of rejection letter issued by Australian Government on July 15, 2010 is also being enclosed herewith). The sources are explained; 1 have two daughters one of which was Post Graduate at the time. The second daughter was also doing private job. My wife was also doing household job, As my source of earning is limited my daughter Shilpa was also doing coaching work from the home for last many years. So on the basis of old savings of all member and my saving we have deposited Rs. 4,31,000/- as cash in my saving account with State Bank of India as above mentioned. As income of all the members were below taxable limit so no return was filed. It has also been explained that; We have also taken as Rs. 2,69,000/- as loan from our relative by cheque. On same date

I find on a consideration of the facts and circumstances consistently available on record that the benefit of past savings of the assessee's family consisting of assessee's wife; two educated daughters and educated son to the tune of Rs. 3,31,000/- rejected by the AO and sustained by the CIT(A) cannot be upheld looking at the target which the assessee was aspiring for i.e. sending his daughter abroad for further studies. Looking at his background, it was a salute worthy ambition. The wife of the assessee as per pleadings before the AO also was working in other persons’ households; one Post Graduate daughter was giving tuitions and another Post Graduate daughter was in private employment and the educated son was also gainfully employed. Accordingly, the argument that there were past savings which were pooled in and collected and deposited keeping the purpose for which the assessee was working to achieve the claim has been discarded without any basis except the reasoning that ít is very/highly improbable that such a huge amount can would be lying with him idle. Therefore, the assessee's contention is not acceptable”. Keeping in view the purpose for which the assessee was working hard, the claim was justified on facts. Accordingly, the respective orders are set aside and ITA/95/CHD/2022 A.Y. 2011-12 Page 11 of 11 addition is directed to be deleted. Said order was pronounced in the Open Court at the time of hearing itself.

In the result, the appeal of the assessee is allowed.