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Income Tax Appellate Tribunal, NAGPUR BENCH, NAGPUR
Before: SHRI V. DURGA RAO & SHRI K.M. ROY, ACCOUNTANT, MEMBER
Date of Hearing – 25/11/2024 Date of Order – 08/01/2025
O R D E R PER K.M. ROY, A.M.
This appeal by the assessee is against the impugned order dated 31/03/2023, passed by the learned Commissioner of Income Tax (Appeals)–3, Nagpur, [“learned CIT(A)”], for the assessment year 2018–19.
In its appeal, the assessee has raised following grounds:–
“1. The Hon'ble Commissioner of Income Tax (Appeals)-3, Nagpur erred in confirming the addition of Rs.16,00,000/- by dismissing the ground of appeal by issuing a corrigendum, which was allowed in the Original Appellate Order.
2. The corrigendum to Appellate Order issued on 09/05/2023 and 21/07/2023 are illegal, invalid and bad in law.
3. The notice of Demand under Section 156 of the Income Tax Act, 1961 for Rs. 20,78,665/- issued by the Assessing Officer on 07/05/2023 i.e, before the issue of corrigendum is illegal, invalid and bad in law.
4. Any other ground shall be prayed at the time of hearing.”
2 Metrocity Homes
At the very outset, the Registry has pointed out that there is a delay of 08 days in filing the present appeal by the assessee. Such delay is supported by a duly sworn affidavit, which is placed on record by the learned Counsel, Shri Dugarkar, appearing for the assessee. The contents of the Affidavit is reproduced below:–
“I, Kailas Kejgir, do hereby take oath and state of solemn affirmation as under: I, Kailas Kejgir, Chartered Accountant look after the Income Tax cases of M/s. Metrocity Homes. The appeal for the A.Y. 2018-19 was e-filed with the Hon-ble ITAT, Nagpur against the order of the Hon'ble CIT(A) in the case of assessee within due date but the same was not considered at the time of physical submission with Registrar, at Hon'ble Income Tax Appellate Tribunal, for want of additional requirements. So, the corrected appeal was filed on 27/09/2023. The delay in filing the appeal is on account of my bonafide mistake. I affirm that the delay in filing appeal is entirely unintentional. It is humbly prayed that delay in filing the appeal be condoned and assessee be not made to suffer for my mistake.
In view of the above, we are of the opinion that the said delay is backed up by justifiable reasons and hence the delay is accordingly condoned. Now, we proceed to dispose off the appeal on merit.
The facts of the case are very unique. The learned CIT(A), vide impugned order dated 31/03/2023, adjudicated the issue which relates to addition made by the Assessing Officer under section 69A of the Income Tax Act, 1961 ("the Act") of ` 16 lakh on account of cash received. The observations of the learned CIT(A) are reproduced below:–
“Further the sub-ground no.11 & 12 of ground no.2 are regarding addition of Rs.16,00,000/- u/s 69A. On going through the documents submitted by the appellant, it is found that the entries of Tirupati Developers & the appellant firm are recorded
3 Metrocity Homes through the capital account of Shri Prashant Bongirwar, common partner in the appellant firm and M/s Tirupati Developers. Against the entry of Rs. 16,00,000/- in the notings it is mentioned that adjusted in hand loan in cheque part. Therefor the entry is adjustment entry and there is no flow of funds. The evidence found on record is not sufficient to support the income earned by the appellant Hence the addition of Rs.16,00,000/- is being deleted.”
Subsequently, the learned CIT(A), vide its first Corrigendum dated 09/05/2023, held as under:–
“Sir/Madam/ M/s, Subject: Online service of Orders - Letter CORRIGENDUM 09.05.2023 Corrigendum to Appellate Order dated 31.03.2023 passed by this office, having Appeal No.CIT(A)-3/10665/2017-18 & DIN & Document No.: ITBA/ APL/S/91/2023-24/1051840578(1) in the case of Metrocity Homes, Nagpur- PAN: AAUFM9880A - AY 2018-19, in Para no. 5- "Discussion and Decision part", are made as under:
As per Appellate Order May be read as per this Description passed by CIT(A)–3, corrigendum Napgur on 31.03.2023 “Hence all the above sub– “Hence all the above sub– Page no.31 (5th and 6th grounds of ground no.1 are grounds of ground no.2, Line) allowed. Hence ground no.1 are allowed. Hence ground is allowed.” no.2, is allowed.” “Hence the addition of ` “Hence the addition of ` Page no.31 (16th and 17th 16,00,000/– is being 16,00,000/– is being line) deleted.” dismissed.” “In ground no.2 the “In ground no.3, the Page no.31 (18th line) appellant submitted total 4 appellant submitted total 4 sub–grounds of appeal” sub–grounds of appeal” Ground no.1 and 2, are “Sub–grounds 1 and 2 are Page no.31 (20th line) regarding addition of ` regarding addition of ` 1,12,000/– 1,12,000/–.” Ground no.3 and 4 are “Sub–grounds 3 and 4 are Page no.32 (1st line) regarding addition of ` regarding addition of ` 2,02,000/– 2,02,000/–“
Sd/– MAURYA PRATAP CIT(A)–3, Nagpur”
4 Metrocity Homes
Surprisingly, on 21/07/2023, he again passed a corrigendum order by directing as reproduced below:–
“Sir/Madam/ M/s, Subject: Online service of Orders - Letter Corrigendum to Appellate Order dated 31.03.2023 passed by this office, having Appeal No.CIT(A)-3/10665/2017-18 & DIN & Document No.: ITBA/ APL/S/91/2023-24/1051840578(1) in the case of Metrocity Homes, Nagpur- PAN: AAUFM9880A - AY 2018-19, in Para no. 5- "Discussion and Decision part", are made as under:
As per Appellate Order May be read as per this Description passed by CIT(A)–3, corrigendum Napgur on 31.03.2023 “Hence the addition of ` “Hence the addition of ` 16,00,000/– made by A.O. is Page no.31 (16th and 16,00,000/– is being found to be correct and this 17th line) deleted.” ground of appeal is hereby dismissed.”
Sd/– MAURYA PRATAP CIT(A)–3, Nagpur”
Against this second corrigendum dated 21/07/2023, the assessee is in appeal before our doors seeking justice. It seems that while passing impugned second corrigendum dated 21/07/2023, the learned CIT(A) was oblivious that a corrigendum order was already passed on 09/05/2023, and such corrigendum was never considered to be nonest. Moreover, keeping the discussion intact, only final decision has been charged which is not at all sustainable. The action of the learned CIT(A) is deprecated, as the diametric change in decision is unwarranted. The assessee is entitled to relief of ` 16 lakh, as the learned Departmental Representative failed to point out any deficiency in appeal order. Thus, the addition made under section 69A of the 5 Metrocity Homes Act of ` 16 lakh made by the Assessing Officer and confirmed by the learned CIT(A) on account of cash receipt is hereby directed to be deleted. Accordingly, the assessee succeeds on this issue.
In the result, appeal filed by the assessee is allowed. Order pronounced in the open Court on 08/01/2025