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Facts
The assessee made cash deposits of Rs.14,11,900/- but did not file an income tax return for AY 2012-13. The AO initiated reassessment proceedings, and due to non-compliance, passed an ex-parte best judgment assessment, adding the cash deposits as undisclosed income. The CIT(A) dismissed the assessee's appeal ex-parte due to non-participation, leading to the current appeal before the ITAT, which was filed with a delay of 178 days.
Held
The Tribunal observed the assessee's casual and lackadaisical conduct throughout the proceedings and noted that no application for condonation of the 178-day delay was filed, nor were cogent reasons provided. The Tribunal found the assessee's claim of late knowledge of the CIT(A) order to be unsubstantiated by email delivery records. Consequently, the Tribunal refused to condone the delay and dismissed the appeal on this procedural ground without addressing the merits of the original assessment.
Key Issues
Whether the appeal filed before the ITAT, with an inordinate delay of 178 days, should be admitted despite the absence of a condonation of delay application and cogent reasons for the delay.
Sections Cited
144, 147, 148, 142(1), 151, 271(1)(c), 274
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, RAIPUR BENCH “SMC”, RAIPUR
Before: SHRI RAVISH SOOD
आदेश / ORDER
PER RAVISH SOOD, JM:
The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 31.01.2024, which in turn arises from the order passed by the A.O under Sec.144/147 of the Income- tax Act, 1961 (in short ‘the Act’) dated 24.11.2018 for the assessment year 2012-13. The assessee has assailed the impugned order on the following grounds of appeal:
“Gr.No.1: "On the facts and circumstances of the case and in law, reopening u/s.148/147 is invalid; based on NMS information of cash deposits into saving bank of Rs.14,11,900, which is sourced from cash withdrawals of Rs.13,06,620 from such SB account; AO has not applied his mind independently on such information; it is only reason to suspect' for verifying the facts; there is no live link/nexus between the NMS information of cash deposits & formation of believe for escaped income of Rs.14,11,900; in absence of this pre-requisite/pre-condition for assuming jurisdiction u/s.147, reopening u/s.148/147 is invalid; liable to be quashed; relied on Lakhmani Mewaldas (1976) (SC); Meenakshi Overseas (P) Ltd (2017) (Del HC); Well Trans Logistics India (P) LW (2024) (Del HC)." Gr. No.2. "On the facts and circumstances of the case and in law, approval granted u/s.151(1) by PCIT dt.5-3-18 is invalid; PCIT has not cared the mistake of AO in proposal form, i.e., wrong mentioning of provisions of law i.e., sec.147(a) which had been omitted from the statute wef.1-4-89; without verifying/caring the fact that cash deposits of Rs.14,11,900 is made out of cash withdrawals of Rs.13,06,620 from such SB account; it is mechanical approval without application of mind; in absence of valid approval u/s.151(1) by PCIT as mandated by law u/s.151; reopening u/s.148/147 is invalid, is liable to be quashed; relied on Kalpana Shantilal Haria (2017) (Bom); Kartik Sureshchandra Gandhi (2023) (Bom)." Gr.No.3: "On the facts and circumstances of the case and in law, CIT(A) has erred in sustaining addition of Rs.14,11,900 on cash deposits into saving bank, which is sourced by cash withdrawals of Rs.13,06,620 from such SB account; it is unjustified & is liable to be deleted." Gr.No.4: "The appellant craves leave, to add, urge, alter, modify or withdraw any grounds before or at the time of hearing."
Succinctly stated, the A.O based on information gathered from NMS that though the assessee had during the subject year made cash deposits of Rs.14,11,900/- in his saving bank account with UCO Bank, Branch : Raigarh but not filed his return of income, initiated proceedings u/s. 147 of the Act. Notice u/s. 148 of the Act, dated 28.03.2018 was issued to the assessee. However, the assessee did not file his return of income in response to the said notice. As the assessee had thereafter failed to comply with the notices which were issued by the A.O u/s. 142(1) of the Act, therefore, the latter was constrained to proceed with and frame the assessment to the best of his judgment. Accordingly, the A.O vide his order passed u/ss.144/147 of the Act, dated 24.11.2018 in absence of any explanation forthcoming as regards the source of the cash deposits of Rs.14,11,900/-, held the same as the assessee’s undisclosed income and determined the income of the assessee at the same amount.
Aggrieved, the assessee carried the matter in appeal before the CIT(Appeals). As the assessee despite having been afforded three opportunities i.e. on 31.12.2020, 12.12.2023 and 10.01.2024 had failed to participate in the proceedings before the first appellate authority, therefore, the CIT(Appeals) was constrained to proceed with and dispose off the appeal vide an ex-parte order. Accordingly, the CIT(Appeals) without adverting to the merits of the case dismissed the appeal.
The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before the Tribunal.
I have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record.
Dr. Priyanka Patel, Ld. Sr. Departmental Representative (for short ‘DR’) at the threshold appraised the bench that the present appeal involved a delay of 178 days. The Ld. Sr. DR had specifically brought to my notice that though the CIT(Appeals)/NFAC passed the order on 31.01.2024 but the present appeal had been filed on 26.09.2024 which, thus, had resulted to a delay of 178 days in filing of the same.
Shri Sunil Kumar Agrawal, Ld. Authorized Representative (for short ‘AR’) on being queried as to on what basis the date of service of the order was mentioned at Sr. No.3 of the “Memorandum of Appeal” in Form-36 as 27.08.2024, submitted that the same was for the reason that the assessee had learnt that the CIT(Appeals) had disposed off the appeal only when he was served with a “Show Cause Notice” (SCN) issued u/s.271(1)(c) r.w.s.274 of the Act, dated 06.08.2024. The Ld. AR had further drawn my attention to the letter dated 05.11.2024 filed by the assessee as regards the defect memo that was issued by the registry, which reads as under:
“1.1. It is respectfully submitted that the assessee has filed appeal in Form No.36 for AY12-13 & AY13-14, both, on 26-9-24, against the order passed u/s250 dt.31-1-24 for AY12-13 from CIT(A), NFAC, Delhi & dt.26-7-24 for AY13-14 from Addl./JCIT(A), Kanpur; however, we have received defective notices dt.30-9-24 for both the years for wrong mentioning in Col.No.11 & date of communication of order has been wrongly mentioned; this is not factually correct since the assessee has only known about the impugned orders of CIT(A) on 27-8-24 when penalty notice for AY 12-13 has been received on 27-8-24 by Speed Post on his postal address at "Bajrang Para Jute Mill, Raigarh-496001 (CG)"; thereafter, the assessee has filed appeal in Form No.36 on 26-9- 24 for both the years; thus, it is submitted that the assessee has correctly filled up the Form No.36 for both the years and there is no wrong mentioning done by the assessee; in this respect, I am submitting sworn affidavit of the assessee dt.5-10-24 for clarifying the facts; however, we have not received any physical copy of the appellate orders (for AY12-13 & AY13-14) till date.”
The Ld. AR had drawn my attention to an “affidavit”, dated 05.10.2024 filed by the assessee, wherein it is deposed that he had learnt about the dismissal of his appeal by the CIT(Appeals)/NFAC, Delhi only when he was physically served with the “SCN” issued u/s.271(1)(c) r.w.s.274 of the Act, dated 06.08.2024.
As the captioned appeal involved a delay of 178 days, therefore, the Ld. Sr. DR had on the earlier occasion i.e. on 16.12.2024 sought some time for filing a counter “affidavit” of the concerned A.O. Thereafter, the Ld. Sr.DR had placed on record an “affidavit”, dated 20.12.2014 of Shri Sunil Kumar Singh, ITO-1(1), Raigarh, wherein he had commented on the deposition of the assessee in his affidavit dated 05.10.2024.
I have thoughtfully considered the contentions advanced by the Ld. Authorized Representatives qua the delay of 178 days involved in filing of the appeal i.e. reckoned from the date on which the impugned order of the CIT(Appeals)/NFAC was passed i.e. 31.01.2024. I find it incomprehensible that though there is an inordinate delay of 178 days involved in filing of the present appeal but till date the assessee had neither filed any application seeking condonation of the same nor come forth with any cogent reason as to why the said delay had occasioned. The aforesaid casual and lackadaisical approach of the assessee can safely be gathered on a perusal of the record which reveals that he had neither participated in the proceedings before the A.O nor before the CIT(Appeals). As the assessee had not participated in the assessment proceedings, therefore, he was visited with an ex-parte order u/ss.147/144 of the Act, dated 24.11.2018. The assessee despite having burnt his fingers and having suffered an ex-parte assessment order, however continued with his casual approach and lackadaisical conduct wherein by not participating in the appellate proceedings before the CIT(Appeals) was visited with dismissal of his appeal in limine. The story does not end here. The assessee had failed to file the present appeal within the stipulated time period before me and the same involves a delay of 178 days. Most surprisingly, the assessee instead of coming before me with clean hands in the backdrop of the fact that a delay in filing of the appeal of 178 days was involved in filing of the present appeal a/w. an explanation as to why the same had occasioned however, wrongly states the date of service of the CIT(Appeals) order as 27.08.2024 at Sr. No.3 in Form 36. Rather, the Ld. AR on being confronted with the said anomaly instead of correcting the said mistake submitted that as the order of the CIT(Appeals) had come to his notice only on the said date, therefore, no delay was involved in filing of the present appeal. I am unable to comprehend the aforesaid conduct of the assessee who till date had not even filed a revised “Memorandum of Appeal” in Form 36 and come up with clean hands qua the correct state of affairs and an explanation for seeking condonation of delay involved in filing of the present appeal.
As is discernible from the “Memorandum of Appeal” in Form 35, it transpires that the assessee had provided email id i.e. dineshkumarsingh7999@gmail.com and had specifically stated that the notices/communication be sent to him on the same. Ostensibly, as pointed out by the A.O in his “affidavit”, dated 20.12.2024, the SCN on all the three occasions i.e. on 12.12.2023, 09.01.2024 and 10.01.2024 were dropped in the email of the assessee i.e. dineshkumarsingh7999@gmail.com and also in the email id of the assessee’s counsel i.e.navin.incometax@gmail.com. Also, the Ld. Sr. DR had placed on record a copy of the “Screen shot” (obtained from e-portal) evidencing that the order of the CIT(Appeals), NFAC was successfully delivered in both the aforementioned email accounts.
Considering the aforesaid facts in the backdrop of the lackadaisical and casual conduct of the assessee before the lower authorities, I find no reason to admit the present appeal, which in turn, involves a delay of 178 days, specifically when no application seeking condonation of delay of the same has been filed before me. Accordingly, in the backdrop of the aforesaid facts, I refrain from condoning the delay involved in filing of the present appeal and dismiss the same on the said count itself.
In the result, appeal filed by the assessee is dismissed in terms of the aforesaid observations.