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Income Tax Appellate Tribunal, SMC BENCH, PUNE
Before: SHRI D. KARUNAKARA RAO, AM
PER D. KARUNAKARA RAO, AM :
This is the appeal filed by assessee against the order of CIT(A) Central, Pune dated 17-02-2014 for the Assessment Year 2005-06.
Assessee raised the following grounds of appeal and the same are extracted as under :
“1. On the facts and circumstances of the case and in law the Ld.CIT(A) was not justified in confirming the addition of Rs.1,70,625/- made by the A.O. in an assessment order passed under S.144 of the Act. The addition made u/s.69 is unwarranted and not sustainable. It be set aside. 2. On the facts and circumstances of the case and in law it was pleaded before Ld.CIT(A) that the assessment itself was barred by limitation the issue raised through grounds of appeal. The Ld.CIT(A) failed to appreciate the legal issue in its proper perspective. The assessment being not sustainable be set aside. 3. On the facts and circumstances of the case and in law the Lady assessee is coming from deeper mofussil area. Being not conversant with legal aspects could not decide how to proceed further. In the process the filing of appeal is delayed by 29 days which ought to have been filed on or before 24-5-2014. The detailed affidavit will be filed explaining the
delay. The delay be condoned and the appeal be admitted for adjudication in accordance with the provisions of law. 4. On the facts and circumstances of the case and in law the levy of interest u/s.234B and 234C is not justified. 5. The appellant craves/leave to add, amend or alter any of the above grounds of appeal.”
Briefly stated relevant facts are that this is a case where
assessment proceedings started with the issue of notice u/s.142(1) of
the Act in connection with an information received from AIR u/s.285BA
of the Act. As per the information, assessee together with many others,
made investment of Rs.1,70,625/- which constitutes her share in
purchasing of the property in the F.Y. 2004-05. There is no response
from the assessee to the said notice. Accordingly, the AO proceeded to
make the assessment u/s.144 of the I.T. Act determining the total
income at Rs.1,70,625/-.
During the First Appellate proceedings, assessee made elaborate
submissions in connection with the grounds raised before him. In
these proceedings, assessee raised an issue relating to the date of
completion of the assessment on 31-12-2007 as the order of
assessment was received late on 12-01-2008. In this regard, assessee
submitted the service of notice as proof of making assessment order
beyond the time allowed by the statute. Assessee raised the issue
relating to the completion of the assessment after the due date expired.
After examining the evidences, CIT(A) came to the conclusion that the
quality of evidence furnished by the assessee is not sustainable.
Accordingly, as per the discussion given in Para No.6.6 of the impugned
order, the CIT(A) dismissed this part of the allegation of the assessee
and approved the date of assessment made by the AO. On merits,
CIT(A) held that the assessee failed to demonstrate the source of the
said sum of Rs.1,70,625/-, therefore, as per the discussion given in
Para No.11.1 of the CIT(A)’s the addition made by the AO in the exparte
assessment u/s.69 of the Act was confirmed.
Aggrieved with the order of CIT(A), the assessee is in appeal before
the Tribunal.
At the outset, before me, Ld. Counsel for the assessee brought my
attention to Ground No.3 and the contents of the affidavit and
submitted that the appeal is filed belatedly before the Tribunal. There
is a discrepancy with regard to the number of days of delay. Assessee
mentioned that the delay is for 29 days as against the delay of 111 days
quantified by this office. It is a fact that the due date for filing of the
appeal is 24-05-2014. Notwithstanding the said discrepancy with
regard to the number of days, the explanation given by the assessee in
the affidavit dated 07-10-2006 mentions the following reasons for delay.
“5. I further stated that I am resident of small village “ATKE” where mainly the residents are agriculturists. I was given to understand that the income-tax was not leviable on agricultural activities and sale and purchase of agricultural lands. In view of this non income-tax return came to be filed by me. I also stated that I had not filed the return of income explaining the investment in agricultural land of Rs.1,70,625/- the assessment was completed exparte without my presence before officer at Kolhapur. When I was told this I had filed my appeal before Commissioner at Kolhapur. The same was represented by my Consultant. The further appeal was required to be filed before Hon’ble Tribunal, Pune within sixty-day’s time. But in view of my position above ultimately it got delayed by 29 days. I had no intention to delay the appeal. The balance of convenience is in my favour. The reasons assigned are bonafide. 6. In the circumstances the delay that occurred in filing my 2nd Appeal be condoned and appeal be admitted for hearing to do complete justice to me.”
From the above, it is evident that the Representative/Consultant
of the assessee is to be blamed for the delay. Otherwise, assessee has
no intention to file the appeal belatedly. Considering the same, I am of
the view that the delay of 111 days in filing the appeal being small is
condoned and the appeal is admitted for adjudication.
Ground-wise adjudication is given in the following paragraphs.
Ground No.1 relates to the confirmation of addition of
Rs.1,70,625/- made by the AO in the exparte assessment u/s.69 of the
Act. In this regard, Ld. Counsel for the assessee brought my attention
to Para No.11.1 of the impugned order of CIT(A) and submitted the fact
of not adjudicating the issue of merits by passing a speaking order. Ld.
Counsel also brought my attention to the affidavit filed by the assessee
dt. 07-10-2016 and submitted that she owns 15 Acres of land and grew
crops such as Sugarcane, soybean, and seasonal vegetables. She earns
the agricultural income from the said agricultural activities to the tune
of Rs.2.50 lakhs per year depending on the rainfall. Further, she
narrated various facts in the said affidavit relating to the transaction.
Explaining the above facts, Ld. Counsel for the assessee submitted that
all these are new facts which were not brought to the notice of the
Revenue authorities during Assessment/Appellate proceedings and
prayed for remanding this issue on merits to the file of AO for fresh
adjudication. He also submitted the fact that the assessment made by
the AO is an exparte assessment and the same was completed without
hearing the assessee in a proper perspective.
On hearing both the parties and finding the facts narrated by the
assessee in the form of affidavit, I am of the view that the proposal of
the Ld. Counsel for the assessee should be considered positively.
Therefore, I remand the issue to the file of AO for examining the facts
provided in the affidavit and make a Denovo assessment on merits.
Accordingly, Ground No.1 raised by the assessee is allowed for
statistical purposes.
Ground No.2 relates to time barring nature of the exparte
assessment dated 31-12-2007. It is the case of assessee that, with the
service of the said assessment order on 12-01-2008, assessment order
cannot be considered passed on 31-12-2007. Otherwise, the assessee
did not have any other evidence to demonstrate that the assessment
was passed after the due date of 31-12-2007.
After hearing both the parties on this issue, I have perused Para
No.6.6 of the CIT(A)’s order and find the following lines are relevant for
adjudication of this legal issue raised by the assessee in Ground No.2 :
“6.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Considering all these facts, an interlude of merely 9-10 days between the end of the limitation period and actual service of the assessment order along with demand notice, in my view, is a grossly insufficient cause to hold that the order was not “made” by the AO within the limitation period. It may be reiterated that no other evidences, whatsoever, has been adduced by the appellant. As the Hon’ Cuttack Bench has pointed out, under the provisions of the General Clauses Act, a government document cannot be questioned unless and until substantial evidence has been produced to dislodge the veracity of the same. In the absence of any such evidence worth the name, the contention of the appellant under this ground that the order, though bearing the date 31-12-2007, was not made on that date, deserves to be rejected. It may be added that a Gazetted Officer of the Govt. of India is authorised to verify/authenticate many documents and issue certificates etc. which, once so verified by him, are taken as authentic. Under the circumstances, there should ordinarily be no reason why an order bearing a certain date and duly signed by him, should be suspected to not have been signed on the said date without any persuasive reason whatsoever for believing so.”
On perusal of the above extract, I find the order of CIT(A) is fair
and reasonable and the assessee does not have any direct evidence to
indicate that the assessment order was passed after 31-12-2007 which
is the due date. CIT(A) has examined all the aspects of the assessee’s
grievance before coming to the conclusion that the order passed on
31-12-2007 is valid. In my view, the decision of the CIT(A) is fair and
reasonable and does not call for any interference.
Ground No.3 relates to the reasons for delay of 29 (sic) days in
filing the appeal before the Tribunal. This issue has already been
adjudicated by me while attending to the preliminary issues and relied
on the contents of the affidavit filed by the assessee for condoning the
delay. Accordingly, Ground No.3 raised by the assessee is allowed.
Ground Nos. 4 raised by the assessee is premature and dismissed
as such. Ground No.5 raised by the assessee is general in nature.
Therefore, the same is dismissed.
In the result, appeal of the assessee is partly allowed for
statistical purposes.
Order pronounced on this 23rd day of February, 2018.
Sd/- (D.KARUNAKARA RAO) लेखा सद� / ACCOUNTANT MEMBER पुणे / Pune; �दनांक Dated : 23rd February, 2018. Satish
आदेश क� आदेश क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत/Copy of the Order is forwarded to : आदेश आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत
अपीलाथ� / The Appellant; 1. ��यथ� / The Respondent; 2. आयकर आयु�(अपील) / The CIT(A) Central, Pune 3. आयकर आयु� / The CIT Central, Pune 4. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे “SMC” / 5. DR ‘SMC’, ITAT, Pune; गाड� फाईल / Guard file. 6.
आदेशानुसार आदेशानुसार/ BY ORDER,स आदेशानुसार आदेशानुसार
स�यािपत �ित //True Copy// //True Copy// Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune