DILAWAR KOCHAY,ANANTNAG vs. INCOME TAX OFFICER ANANTNAG, ANANTNAG
Facts
The assessee deposited Rs. 13.18 lakhs cash during the demonetization period in FY 2016-17, but did not file a return. The Assessing Officer completed an ex-parte assessment under Section 144, making an addition under Section 69A. The subsequent appeal to the CIT(A) was also dismissed ex-parte due to the assessee's non-representation.
Held
The Tribunal condoned the 78-day delay in filing the appeal, noting the assessee's age and counsel's negligence. Observing that both the assessment and the first appeal were decided ex-parte without proper opportunity, the Tribunal remanded the case back to the Assessing Officer for fresh adjudication on merits after granting the assessee a reasonable opportunity to explain the cash deposits with supporting evidence.
Key Issues
Whether the ex-parte assessment and first appellate order were valid given the lack of opportunity to be heard, and whether the matter should be remanded for fresh adjudication on the merits of cash deposits during demonetization.
Sections Cited
Section 250(6), Section 144, Section 144A, Section 69A, Rule 34(4) of Income Tax (Appellate Tribunal) Rules, 1963
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: SH. MANOJ KUMAR AGGARWAL & SH. UDAYAN DASGUPTA
Per Udayan Dasgupta, J.M.:
This appeal is filed by the assessee against the order of ld. CIT (A) National Faceless Appeal Centre (NFAC), Delhi dated 22.09.2023 passed u/s 250(6) of the Income Tax Act, 1961 which has emanated from the order of the Income Tax
Officer, Ward-3 (4), Anantnag dated 18.12.2019 passed u/s 144 of the I. T. Act, 1961.
2 I.T.A. No. 48/Asr/2024 Dillawar Kochay v. ITO Condonation of delay:- It is pointed out by the registry that this appeal is 2.
belated by 78 days. The CIT (A) order is dated 22/09/2023 and the due date for filing
expires on 21/11/2023 and the date of actual filing before the tribunal was
07/02/2024. An affidavit has been filed by the assessee stating that the assessee is
an old man of eighty two years (82 years), without any technical knowledge of
computer applications. He handed over his appeal matter to a counsel who has not
caused any representation before the Ld first appellate authority and has never
informed the assessee regarding the notices issued from the appeal office and has
also not informed the assessee regarding the ex-parte disposal of the appeal order,
which has resulted in delay filing of this appeal through a newly appointed counsel.
As such he prays for condonation of the delay and admission of the appeal for
decision on merits. The Ld. DR has no objection. Taking into consideration the
reasons submitted by the assessee the delay is condoned and the appeal admitted to
be heard on merits.
Grounds of Appeal taken by the assessee in Form No. 36 are as under:
“1. The Ld. CIT A was not justified in refusing to decide on ground no 1 & 2 raised in the appeal on the plea that the assessee has not mentioned on which action of AO he is aggrieved. The said ground reads as "The AO has not given sufficient opportunity of being heard taking into account the prevailing situation in the valley when all communication was disrupted and economic activity had come to a standstill following revocation of article 370 on 5th August 2019" & " Notices mentioned in
3 I.T.A. No. 48/Asr/2024 Dillawar Kochay v. ITO
Assessment Order were not served on the Assessee". The learned Assessing officer is not justified in taking recourse to the provisions of section 144 of the Income Tax Act as He was not being given an opportunity of being heard.
The Ld. CIT (A) has erred in upholding the addition made by JAO without evaluating the information/records.
The Ld. CIT (A) has erred in upholding the addition made by JAO without appreciating the written submission made on account of the source of deposits of cash in his bank account and the differential treatment given by AO on the cash deposits in the same bank account in the same year. The Appellant may please be allowed to submit additional information/documents before the Hon'ble Bench as additional evidence as the appellant has not got an opportunity to present his case. His consultant has not perused the case although he was duly authorized for appearing before the CIT(A) and has not even informed him of dismissal of Appeal by CIT (A) with the result he was not able to file the Appeal before the Hon'ble Tribunal on time.
The appellant craves leave to add, amend, alter, vary and/or withdraw any or all the grounds of appeal during the hearing of the case.”
The brief facts as emerging from records are that the assessee has bank account
credits transactions during FY 2016-17, amounting to Rs.20. 76 lakhs, which
includes an amount of cash deposit of Rs. 13.18 lakhs, during the demonetization
period and no regular return has been filed. Various notices issued by the AO in
course of assessment proceedings have remained uncomplied, even though in the
grounds of appeal, the assessee has claimed to have filed written submissions. The
assessment has been completed (as per direction of Additional CIT u/s 144A of the
4 I.T.A. No. 48/Asr/2024 Dillawar Kochay v. ITO Act 1961) on a total income of Rs. 13.79 lakhs including an addition of Rs.13.18
lakhs u/s 69A of the Act for SBN deposit during demo period.
The matter carried in first appeal before Ld CIT(A) NFAC, has been dismissed
in absence of any representation by the assessee in course of appellate proceedings ,
to several notices issued by the office of the Ld first appellate authority on four
different occasions (as evident from para –5 of the appeal order), on the ITBA
portal. It is the contention of the Ld AR of the assessee that notice of hearing has not
be received by the assessee, because the notice has never been issued in the email
provided in form 35, and proper opportunity to explain his case has not been allowed
and he prays for one last opportunity to submit all his papers and documents to
explain the case.
The Ld. DR has no objection if the matter is remanded for fresh adjudication.
We are of the opinion that deposit of SBN in bank during the demonetization
period, needs to be explained to the satisfaction of the AO , with supporting cash
book entries along with other documentary evidences and in the instant case the
assessment proceedings were completed at a time when the assessee was prevented
by various reasons for non appearance leading to an ex parte order.
In the interest of justice we set aside the matter back to the assessing office, for
fresh adjudication on merits after affording proper and reasonable opportunity of
5 I.T.A. No. 48/Asr/2024 Dillawar Kochay v. ITO being heard to the assessee, and the assessee is directed to file all necessary
supporting evidence and books of accounts to explain his case including the deposit
of SBN in bank accounts. We have not expressed any opinion on merits.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in accordance with Rule 34(4) of the Income Tax (Appellate
Tribunal) Rules, 1963 as on 21.05.2025.
Sd/- Sd/- (Manoj Kumar Aggarwal) (Udayan Dasgupta) Accountant Member Judicial Member *GP/Sr.PS* Copy of the order forwarded to: (1)The Appellant: (2) The Respondent: (3) The CIT concerned (4) The Sr. DR, I.T.A.T True Copy By Order
