DINESH BHOJA SHETTY,MUMBAI vs. DCIT, CIRCLE 41(2)(1), MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRY
Per : Narender Kumar Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated 08.12.2023, impugned herein, passed by the National
Faceless Appeal Center (NFAC)/ Ld. Commissioner of Income Tax
(Appeals) (in short Ld. Commissioner) under section 250 of the Income Tax Act, 1961 (in short ‘the Act’) for the A.Y. 2012-13. Shri Dinesh Bhoja Shetty
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2. At the outset, it is observed that there is a delay of 154 days in filing the instant appeal, on which the Assessee has claimed that impugned order was forwarded to Shri Prakash Kodia, CA, who was handling the regular assessment of the Assessee. However, subsequently the Assessee appointed Shri Santosh Kumar Bhandari,
Ld. CA to handle the litigation before the Tribunal in the month of January 2024. During the transit of documents, there was some miscommunication between the earlier and latest CAs and therefore impugned order was inadvertently missed. The Assessee on or about 05.06.2024 asked latest CA Shri Santosh Kumar Bhandari about the status of the appeal and at that particular time on enquiry from staff Mr. Kumar Ld. CA informed the Assessee that the appeal left out to be filed. However, thereafter appeal was filed immediately but with a delay of 154 days and therefore the Assessee has prayed for condonation of delay. On the contrary, the Ld. D.R. vehemently refuted the claim of the Assessee.
Having considered the reason submitted by the Assessee it is observed that though the reason does not appear to be plausible, however, as no fruitful purpose would be served by delaying the legal proceedings, therefore considering the peculiar facts and circumstances in totality, as the contention of the Assessee is supported by duly sworn affidavit and there is no material to contradict the claim of the Assessee. Hence, considering the reasons stated by the Assessee as bonafide and un-intentional, this Court is inclined to condone the delay, however, subject to as toke cost of Rs.2,200/- to be deposited in the Revenue Department under “other heads” within 15 days from the date of receipt of this order.
Coming to the merits of the case, it is observed that the case of the Assessee was reopened u/s 147 of the Act on the information Shri Dinesh Bhoja Shetty
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received from Individual Transaction Statement (ITS) to the effect that the Assessee has transacted the amount of Rs.34,00,000/- in total and consequently the notice u/s 148 of the Act was issued on 31.03.201, in response to which the Assessee filed his return of income on 09.09.2018 declaring income of Rs.13,73,000/-.
Thereafter, various statutory notices were issued and the case of the Assessee was examined. As per information available during the assessment proceedings, the Assessee had purchased immovable property on a cost of Rs.63,63,000/- whereas the capital value of the same was Rs.63,62,802/- at the time of purchase of the property. From the details filed by the Assessee, it was observed by the AO that total purchase value has been paid to the tune of Rs.45,00,000/- which was received from bank as loan. But the Assessee failed to provide the details of the balance payment and therefore in the absence of the same, the Assessee was show caused “as to why the balance amount of Rs.18,63,000/- should not be treated as unexplained cash credit in the books of account of the Assessee and added back to the total income of the Assessee”. The Assessee in response to show cause notice, made no compliance and therefore in the constrained circumstances, specifically in the absence of relevant reply/documents which the Assessee has failed to file, the AO ultimately made the addition of Rs.18,63,000/- u/s 68 of the Act.
The Assessee, being aggrieved, challenged the said addition before the Ld. Commissioner and during the appeal proceedings filed certain details and some documents including purchase agreement and bank statement etc. However, in Form No.35 wherein the column No.12 which prescribed “Whether any documentary evidence other than the evidence produced during the course of proceedings before the Income Tax Authorities has been filed in terms of rule 46A”, the Assessee replied “No”. Even during Shri Dinesh Bhoja Shetty
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the appellate proceedings before the Ld. Commissioner, the Assessee has not filed any application u/r 46A of the Income Tax
Rules, 1962 (in short “the Rules”) for admission of new evidence.
1 The Ld. Commissioner therefore by considering the aforesaid facts and circumstances specifically column No.12 of Form No.35 wherein the Assessee replied “No” in response to the specific question “Whether any documentary evidence other than the evidence produced during the course of proceedings before the Income Tax Authorities has been filed in terms of rule 46A”, and the fact that the Assessee has not filed any specific application u/r 46A of the Rules, the Ld. Commissioner did not admit the documents/evidence (new) filed by the Assessee and ultimately affirmed the addition.
The Assessee, being aggrieved, has filed this appeal before this Tribunal.
Heard the parties and perused the material available on record. Admittedly, the Assessee was at fault for not giving proper reply to the specific question and also not filing appropriate application for producing the new/additional evidence. However, it is clear from the orders passed by the authorities below that in the absence of specific documents/reply/submission, the issue involved remained to be adjudicated in its right perspective and in proper manner and therefore for just decision of the case and in the interest of substantial justice, this Court is inclined to remand the instant case to the file of the Ld. Commissioner for decision afresh, suffice to say by affording reasonable opportunity of being heard to the Assessee. Shri Dinesh Bhoja Shetty
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9. The Assessee is also directed to file the relevant documents/
submissions/ reply and proper application as prescribed/mandated in law for producing the additional/new evidence. In case of subsequent default, the Assessee shall not be entitled for any leniency.
Thus, the case is accordingly remanded to the file of the Ld. Commissioner for decision afresh.
In the result, the appeal filed by the Assessee is allowed for statistical purposes.
Order pronounced in the open court on 08.01.2025. (NARENDER KUMAR CHOUDHRY)
JUDICIAL MEMBER
* Kishore, Sr. P.S.
Copy to: The Appellant
The Respondent
The CIT, Concerned, Mumbai
The DR Concerned Bench
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By Order
Dy/Asstt.