NEHA TAMRAKAR,BHOPAL vs. INCOME TAX OFFICER 5 (1), BHOPAL

Per Paresh M Joshi, J.M.:

This is an Appeal filed by the Assessee under section 253 of

the income tax Act 1961,[ herein after referred to as the Act

for the sake of brevity] before this tribunal as & by way of a

second Appeal. The Assessee is aggrieved by the order

bearingNumber:-ITBA/NFAC/S/250/2023-24/1057144832(1)

dated 17.10.2023 passed by the Ld. CIT(A) u/s 250 of the

Act, which is herein after referred to as the “Impugned

order”. The Relevant Assessment year is 2009-10 and the

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corresponding previous year period is from 01.04.2008 to

31.03.2009.

2.1 That as and by way of an Assessment order made u/s

147 rws 144/144B of the Act, the total income of the

Assessee was computed & assessed at Rs. 22,04,600/-. The

total income as per the return of the income was at

Rs.1,02,100/-. The addition of Rs.22,04,600/- was made as

unexplained deposit. The aforesaid Assessment order is

dated 21.12.2016 [PAN No. AJTPT 6475G] of ITO-5(1) Bhopal

MP which is herein after referred to as the “Impugned

Assessment Order”

2.2 In the aforesaid “Impugned Assessment Order” it is

recorded that “As per AIR information generated through the

system of this office it was found that during the F.Y.2008-

09 relevant to the A.Y.2009-10 the assessee has deposited in

cash of Rs. 22,04,600/- in a Saving Bank Account. However

as per available record the assessee has filed the return for

the AY 2009-10 and declaring income of Rs. 1,02,100/-.

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Hence, after recording reason u/s 148(2) of the Income Tax

Act, 1961 (hereinafter referred as 'Act') and getting approval

on 26.02.2016 from the competent authority u/s 151 of the

'Act' notice u/s 148 of the 'Act' dated 03.03.2016 was issued.

Due to change of incumbent notice u/s 142(1) of the 'Act'

dated 01.08.2016, 09.09.2016, 05.10.2016, 17.11.2016

requiring the assessee to furnish the queries raised wherein

by 10.08.2016, 23.09.2016, 19.10.2016, 28.11.2016. Due to

change of incumbent notice U/s. 129 alongwith last

opportunity issued on 01.12.2016 and 16.12.2016 and fixing

the hearing on 07.12.2016 and 19.12.2016 and served on

16.12.2016. On the given date neither anyone attended nor

any written reply was filed. Even no adjournment was sought

till date by the assessee to make future compliance. In the

absence of proper documentary evidence why shall not

deposit in cash of Rs. 22,04,600/- in a Saving Bank Account

as assesses unexplained income. As on the given date

neither assessee was appeared nor any written reply was

filed till date. As the assessment proceedings are not ad

infinitum and is being barred by limitation on 31/12/2016,

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hence it is futile to wait endlessly for assessee looking to the

persistent non-compliance made by him having left no option

in hand I am resorting to the section 144 of the 'Act' and

assessment is made on best of my judgement.”

2.3 Further in the aforesaid “Impugned Assessment Order”

it is also recorded that “on perusal of the AIR information it

was found that the assessee has made cash deposits of Rs.

22,04,600/-. In absence of proper documentary evidence and

looking to the fact that the assessee has not filed any return

not only within the prescribed time-limit mentioned u/s 139

but also in compliance of the notice issued u/s 148 of the

'Act' hence cash deposit of Rs. 22,04,600/- is treated as

unexplained income of the assessee for the F.Y. 2008-09

relevant to the A.Y. 2009-10.”

2.4 That the assessee being aggrieved by the aforesaid the

“Impugned Assessment Order” prefers the first appeal u/s

246 A of the Act before the Ld. CIT(A) who by the “Impugned

Order” has dismissed the first appeal of the assessee on the

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grounds & reasons stated therein. The core grounds &

reasons for the dismissal of the first appeal are as under:-

“In the original grounds of appeal, the assessee has challenged the validity of the reassessment proceedings on the ground that the notice u/s. 148 was issued only on 16.12.2016 and hence, the same is barred by limitation and accordingly, the assessment order is invalid and bad in law. However, perusal of the assessment order shows that sufficient opportunities were provided by the AO before finalizing the assessment as per his best judgment. 6.1 The relevant extract of the assessment order is reproduced hereunder :-"............ Hence, after recording reason u/s. 148(2) of the Income Tax Act, 1961 and getting approval on 26.02.2016 from the competent authority u/s. 151 of the Act notice u/s. 148 of the Act dated 03.03.2016 was issued. Due to change of incumbent notice u/s. 142(1) of the Act dated 01.08.2016, 09.09.2016, 05.10.2016, 17.11.2016 requiring the assessee to furnish the queries raised wherein by 10.08.2016, 23.09.2016, 19.10.2016, 28.11.2016. Due to change of incumbent notice u/s. 129 alongwith last opportunity issued on 01.12.2016 and 16.12.2016 and fixing the hearing on 07.12.2016 and 19.12.2016 and served on 16.12.2016. On the given date neither any one attended nor any written reply was filed. Even no adjournment was sought till date by the assessee to make future compliance. In the absence of proper documentary evidence why shall not deposit in cash of Rs. 22,04,600/- in a Savings Bank Account as assessee's unexplained income. As on the given date neither assessee appeared nor any written reply was filed till date. As the assessment proceedings are not ad infinitum and is being barred by limitation on 31.12.2016, hence it is futile to wait endlessly for the assessee looking to the persistent non- compliance made by him having left no option in hand I am resorting to the section 144 of the Act and assessment is made on best of my judgement. 6.2 To verify the assessee's contention regarding no notice u/s 148 being issued within time, this office vide letter dated 01.09.2023 requested the AO to provide the proof of service of notice issued u/s. 148 of the Act. The AO vide letter dated 21.09.2023 has stated that the notice u/s. 148 was issued to the assessee on 03.03.2016 through speed post bearing no. E1734581034IN and has also uploaded the copy of the notice u/s. 148 of the I.T. Act issued on 03.03.2016. The copy thus uploaded by the AO is scanned and placed below for easy reference:

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6.3 It may be noted that the address mentioned in the notice u/s 148 dated 03.03.2016 is similar to the address at which the assessment order along with the notice u/s 156 of the Act is issued. Hence, it can be fairly concluded that all the notices issued by the AO were issued at the same address i.e H No. A- 177, Sector-A, Indrapuri, Bhopal. Hence, there is no plausible reason to accept that though the assessee was able to receive notice dated 16.12.2016, the earlier notices issued on the same address would not have been served on her. In view of the above factual position the grounds number 1 and 2 raised by the assessee questioning the validity of the assessment order on account of non service of the statutory notices within the stipulated time limit, are hereby dismissed.

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as deposits made out of any undisclosed income. Accordingly, addition u/s 68 is unsustainable. It is also pertinent to mention here that though the assessee, against column 12 of Form 35, has mentioned that additional evidences are filed under Rule 46A, which includes the copy of bank statements and sale bills, the only document filed by the assessee is the copy of registration of Shop Establishment dated 22/06/2016. 7.3 Vide notice dated issued u/s 250 of the Act the assessee was specifically asked to submit her response on additional evidences as under: 10. In case any additional evidences are produced or proposed to be produced during the appellate proceedings, the exceptional circumstances as enumerated in Rule 46A of the Income Tax Rules, 1962 under which your case falls should be specified along with necessary documents to support the existence of the exceptional circumstances so specified. In response the assessee merely submitted submitted that that "The "The Order Order is is Passed U/s 144 and the Assessee Failed To produce Necessary Evidence." 7.4 Thus, the assessee has made no efforts to substantiate the true nature of sources of cash deposited by her in the bank account. The assessee claims to be in the business of trading of copper and brass scrap and has filed her ROI on presumptive basis u/s 44AD of the Act on a turnover of Rs. 15 lacs. But in the absence of any supporting documents to substantiate the nature of business activities allegedly carried out by her, no benefit of even the sum of Rs.15 lacs claimed to be deposits reflecting her business turnover can be given to her. Thus the reliance placed by the assessee on the Mumbai ITAT's decision in the case of ACIT vs. Ramlal Jewellers Pvt. Ltd. does not support the assessee's case as in her case the cash sales itself are doubtful. 7.5 In view of the above observations, the addition of Rs. 22,04,600/- made by the AO as unexplained deposits is hereby confirmed. Thus, additional ground raised by the assessee is Dismissed. 8. To conclude, the present appeal is DISMISSED.”

2.5 The assessee being aggrieved by the “Impugned Order”

has preferred the instant second appeal before this Tribunal

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& has raised following grounds of the appeal in the From No.

36 against the “Impugned Order” which are as under:-

“1. On the facts and circumstances of the case and in law the learned CIT(A) erred in not providing adequate consideration for appellant submission. The Appellant prays that the EXPARTE order of CIT(A) passed without giving proper consideration be directed to be quashed and set aside. 2. On the facts and circumstances of the case and in law, the learned Commissioner of Income tax (Appeals) ("CIT(A)") erred in exparte dismissing the appeal of the Assessee and thereby confirming the addition made by the Assessing Officer. The Appellant prays that the said order be set aside to the CIT(A) for hearing on merits. 3. On the facts and circumstances of the case and in law the CIT(A) erred in conforming the addition of Rs. 22,04,600/- under Section 69 of the Act. The Appellant prays the said addition be directed to be deleted. 4. The Appellant craves leave to add to, alter and/or amend all or any of the foregoing grounds of appeal.”

3.1 The hearing in the matter took place on 12.01.2026 when

the Ld. AR for & on behalf of the assessee appeared before us

& interalia contended that the “Impugned Order” is bad in

law illegal & not proper. It is in the violation of the principles

of natural justice. It therefore deserves to be set aside. It was

next contended that the registry has pointed out the delay of

409 days in filling the instant second appeal. It was

submitted that in this regard a condonation of delay

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application is made together with an affidavit dated

10.01.2026. It was submitted that impugned order is dated

17.01.2023 & that the same was not received by the

assessee at that point of time. It was encountered by her

when she logged on to the portal on 26.12.2024. It was also

submitted by the Ld. AR that e-mail id is not on the record.

In form No.35 general e-mail id is mentioned. The said e-mail

id itrdsc@gmail.com as is recorded in form NO. 35 do not

belong to the assessee. The same is not in the access of the

assessee. No physical copy of the impugned order was

received by the assessee. It was submitted that the

“Impugned Order” was passed after seven years. The delay

was bonafide. There is no malafide intention of the assessee.

Sufficient cause is shown & hence the delay be condoned.

Per contra the Ld. DR for the revenue submitted that the

department has no objection if the delay is condoned by this

Tribunal. After carefully going through the condonaiton of

delay application & affidavit in support we are of the

considered view that the delay is not deliberate & there is no

malafide intention of the assessee. Assessee has shown

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sufficient cause. Accordingly we condone the delay & admit

the appeal.

3.2 The Ld. AR for the assessee then contended that the

“Impugned Assessment Order” is exparte. Non compliances

have happened. The jurisdiction of the Ld. AO was changed

on more than two occasions. Multiple notice(s) in the

assessment proceedings came to be issued. In so far as the

impugned order was concerned it was pleaded that the same

is too exparte. The statement of fact as per the form No. 35

was relied upon. It was also submitted that the notice u/s

148 was beyond time of 6 years. Para 6.2 of the Ld. CIT(A)

order was referred & it was stated that the Ld. AO response

was not provided for. The page 3 of the “Impugned Order”

was read out too(para6, 6.1). It was finally prayed by the Ld.

AR that the “Impugned Order” be set aside & the matter be

remanded back to the file of the Ld. AO on denovo basis. Per

contra the Ld. DR appearing for the Revenue contended that

“revenue has no objection if the “Impugned Order” is set

aside & the matter is remanded back to the file of the Ld. AO

subject to cost. In rejoinder the Ld. AR submitted that the

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assessee is small business woman & minimum cost should

be imposed on her.

4.1 We have to decide the legality, validity and proprietary of

the “impugned order” basis records of the case & the rival

submission canvassed before us.

4.2 We have carefully perused the records of the case and have

heard the submissions.

4.3 We basis records of the case & after hearing & upon

examining the contentions of the Ld. AR & Ld. DR canvassed

before us are of the considered opinion that the “Impugned

Assessment Order” is under section 144 of the Act & the

matter has not been adjudicated & adjudged basis merits of

the case. Even the “Impugned Order” is not on merits for

more than one reason i.e. no. additional evidence filed please

see para 7.3 of the impugned order.

“Impugned Assessment Order” was under 144 of the Act no

documents filed to sustainable turnover of 15 lakhs u/s

44AD & so on & so forth.

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This Tribunal desires meritorious disposal of the “Impugned

Assessment Order” & so also of the “Impugned Order”. The

assessee cooperation in this regard assumes importance. The

Assessee cannot go in slumber mode. In our considered view

& opinion the Impugned order should be set aside & is

accordingly set aside back to the file of the Ld. AO for

passing a fresh order on merits of the case. It is the

expectation of this Tribunal that the assessee would give her

full & complete details including latest e-mail id of her &

counsel to the Department where notices could be served

effectively by the department. The assessee to attend

hearings as & when fixed & file reply & details as sought by

the Ld. AO, be provided for.

4.4 In the premises drawn up by us, we set aside the

“Impugned Order” & remand the case back to the file of the

Ld. AO on denovo basis subject to payment of cost of Rs.

2500/- by assessee to the department by filling a challan

In category “others”. The assessee is directed not take any

credit of taxes, penalty, interest etc. against such payment of

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cost. The Ld. AO is directed to pass a speaking & well-

reasoned order.

5.1 In the result, the “Impugned Order” is set aside as & by

way of remand back to the file of Ld. AO with directions as

aforesaid.

5.2 Consequently appeal is allowed for statistical purpose.

pronounced in open court on 16.01.2026

Sd/- Sd/-

(BHAGIRATH MAL BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Indore Dated : 16/01/2026 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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