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Income Tax Appellate Tribunal, “A” BENCH : BANGALORE
Before: SHRI GEORGE GEORGE K & SHRI LAXMI PRASAD SAHU
Per George George K, Vice President:
This appeal at the instance of the assessee is directed against CIT(A)’s order dated 31.10.2023, passed under section 250 of the Income Tax Act, 1961 (hereinafter called ‘the Act’). The relevant Assessment Year is 2018-19.
The grounds raised read as follows:
The orders of the authorities below in so far as they are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The learned CIT[A] is not justified in refusing to condone the delay in filing the appeal especially without issuance of any notice for hearing of
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the appeal and rejecting the reasons explained for the delay in filing on slender and unsustainable grounds without appreciating that the cause of substantive justice must be preferred over technical considerations under the facts and in the circumstances of the appellant's case. 3. Without prejudice to the above, the learned CIT[A] is not justified in upholding the completion of the assessment u/s.144 of the Act, without allowing the appellant a fair opportunity of being heard, under the facts and in the circumstances of the appellant's case. 4. Without prejudice to the above, the order of re-assessment is bad in law and void-ab-initio for want of requisite jurisdiction especially, the mandatory requirements to assume jurisdiction u/s 148 of the Act did not exist and have not been complied with and consequently, the re- assessment requires to be cancelled. 5. Without prejudice to the above, the appellant denies herself liable to the assessed on a total income of Rs.1,02,47,403/- as determined in the impugned order under the facts and in the circumstances of the appellant's case. 6. The learned CIT[A] is not justified in upholding the addition of Rs.1,02,47,403/- as unexplained investment u/s 69 of the Act under the facts and in the circumstances of the appellant's case. 6.1 The learned CIT[A] failed to appreciate that the source for the purchase of the immovable property was from out of the home loan availed from Bajaj Finsery and therefore, the investment was made from out of known and explainable sources and thus, the addition made is unjustified under the facts and in the circumstances of the appellant's case. 7. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies herself liable to be charged to interest u/s. 234-A and 234-B of the Act, which under the facts and in the circumstances of the appellant's casa deserves to be cancelled. 8. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs.
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Brief facts of the case are as follows:
Assessee is an individual. For the Assessment Year 2018-19, return of income was not filed by the assessee. The AO issued notice under section 148 of the Act to examine the source for purchase of an immovable property by the assessee. Since notices issued under section 142(1) of the Act was not responded by the assessee, the AO sent a proposal dated 25.01.2023 to complete the assessment under section 144 of the Act. Since there was no response to the said show cause notices issued, the assessment was completed vide order dated 09.03.2023 under section 147 r.w.s. 144 r.w.s. 144B of the Act. In the assessment completed, the entire amount of purchase cost was treated as unexplained and the income was determined at Rs.1,02,47,403/-.
Aggrieved by Assessment Order dated 09.03.2023, assessee filed appeal before the CIT(A). There was a delay of 75 days in filing the appeal before the CIT(A). Assessee filed a petition for condonation of delay. The CIT(A), however, rejected the assessee’s application for condonation of delay and dismissed the appeal of the assessee.
Aggrieved by the order of the CIT(A), assessee has filed the present appeal before the Tribunal. The learned Counsel for the assessee submitted that CIT(A) has erred in dismissing the appeal of the assessee in limine without condoning the delay of 75 days in filing the appeal before him. It was submitted by the learned AR that the CIT(A) ought to have granted assessee an opportunity to explain if he is not satisfied with the reason stated in the petition for condonation of delay. Further, the learned AR submitted that hearing notices were never received or
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could have settled in the spam folder of the email ID of the assessee’s authorized representative during the course of assessment proceedings.
The learned DR supported the orders of the AO and the CIT(A).
We have heard the rival submissions and perused the material on record. The CIT(A) dismissed the appeal in limine rejecting the delay condonation application of the assessee. The assessee in the delay condonation application had stated that she was preoccupied with treatment of her aged in-laws who were hospitalized from time to time. It is also stated that she is dependent on her AR who had updated his email ID in the income-tax portal and she had expected him comply with hearing notice during course of assessment proceeding. It is stated that the email sent by the Department had settled in the spam folder of the email of her AR and hence could not attend to the proceedings before the AO.
We find that the delay in filing the appeal is not an inordinate delay. The delay in filing the appeal before the CIT(A) is only 75 days. The entire cost of purchase of the property has been added as unexplained income of the assessee. The delay in filing the appeal was primarily due to the mistake of the Counsel since the notices of hearing was not received by the AR or may be settled in the spam folder of his email. In the interest of justice and equity, we are of the view that the delay of 75 days is to be condoned and we do so. Since the appeal was not decided on merits, we deem it appropriate to restore the matter to the CIT(A). It is ordered accordingly.
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In the result, appeal filed by the assessee is allowed for statistical purposes.
Pronounced in the open court on the date mentioned on the caption page. Sd/- Sd/- Sd/- (LAXMI PRASAD SAHU) (GEORGE GEORGE K) Accountant Member Vice President Bangalore. Dated: 02.01.2024. /NS/*
Copy to: 1. Appellants 2. Respondent 3. DRP 4. CIT 5. CIT(A) 6. DR, ITAT, Bangalore. 7. Guard file By order
Assistant Registrar, ITAT, Bangalore.