SAROJ,MAINPURI vs. I.T.O WARD 2(5), MAINPURI

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRABENCH, AGRA

BEFORE : SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER And SHRI SUDHIR KUMAR, JUDICIAL MEMBER

ITA No. 218/Agr/2024 Assessment Year: 2012-13

Smt. Saroj, Vill. & Post – Income-tax Officer, Dharau, v. Ward 2(5), Mainpuri-205001 Civil Lines, Uttar Pradesh Mainpuri-205001, U.P. PAN :LNPPS2117H (Appellant) (Respondent)

Assessee by Sh. Pankaj Gargh, Advocate Revenue by Sh. Shailendra Srivastava, Sr. DR

Date of hearing 21.01.2025 Date of pronouncement 14.2.2025

ORDER PER RAMIT KOCHAR, AM:

This appeal in ITA No. 218/Agr/2024 for the assessment year

2012-13 has arisen from the appellate order dated 14.01.2024 [DIN &

Order No. ITBA/APL/S/250/2023-24/1059698444(1)], passed by learned

ADDL/JCIT(A)-1, Delhi, which appealbefore ld. Addl/JCIT(A)-1, Delhi in

turn has arisen from the assessment order dated 29.11.2019 passed by

Assessing Officer u/s. 143(3) read with section 147 of the Income-tax

Act, 1961.

ITA No.218/Agr/2024

filed with Income Tax Appellate Tribunal, Agra Bench, Agra, reads as

under :

Assessing Officer that the assessee has deposited Rs.16 lakhs in cash in

her Saving Bank Account No. 32252355696 with State Bank of India

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during the year under consideration. Assessing Officer issued notice

dated 25.03.2019 u/s. 148 of the Act to the assessee after taking

approval from competent authority, for reopening of the concluded

assessment. The assessee had not filed return u/s 139. .In compliance thereof to the notice u/s 148, the assessee filed return of income

declaring nil income. Notice u/s. 142(1) was issued by the Assessing

Officer during the course of reassessment proceedings. The assessee in response thereof submitted bank statement, but failed to furnish any

evidence regarding source of cash deposits made by her in her saving

bank account. The Assessing Officer issued show cause notice dated 02.09.2019 u/s. 144 to the assessee,but the assessee did not comply. Assessee thereafter submitted reply before the Assessing Officer and

submitted that she is a house wife and also submitted copy of power of attorney dated 20.03.2012 and copy of sale deed of two immovable properties sold by Sh. Sugriv Singh on 07.11.2012 for Rs.10,50,000/-

and Rs.4,45,000/-. It was submitted that the power of attorney was given by her husband to Shri Sugriv Singh to sell the immovable property and the amount received as advance against sale of property was deposited in her bank account. The assessee submitted that she has 1/20th share in the property. Assessing Officer observed that the assessee has submitted power of attorney dated 20.03.2012 , but the assessee has 3 | P a g e

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failed to furnish any evidence regarding advance payment received

during the F.Y. 2011-12 against the sale of properties. The Assessing

Officer observed that theassessee submitted that two immovable

properties were sold for Rs. 14,95,000/- ,and the assessee has 1/20

share in the properties , hence the assessee share comes to Rs.

74,750/- whereas the cash deposited in the bank account is Rs.

16,00,000/- . The AO rejected the explanation submitted by the assessee

in support of cash deposit of Rs. 16,00,000/- . The Assessing Officer

made the addition of Rs.16,00,000/- to the income of the assessee as

the assessee failed to furnish any evidences regarding payment received

as advance against sale of properties , and hence the cash deposits

made into her saving bank remained un-explained.

which was dismissed by learned CIT(Appeals) by observing that the

assessee has not submitted any written submission or documentary

evidences during appellate proceedings despite as many as four notices

issued by learned CIT(A). Learned CIT(Appeals) also observed that the

assessee has claimed that the land belonged to her husband and her

four brother, having equal share. As per the appellant, all the brothers

are illiterate and hence there was no bank account in their names, and

thus the advance money received on such sales was deposited in her 4 | P a g e

ITA No.218/Agr/2024

bank account. The assessee has stated that three sales deeds were

executed for a total consideration of Rs. 19,00,000/- out of which, an

amount of Rs. 16,00,000/- was received in advance through a mediator ,

which was deposited in the bank account. In the statement of fact , the

assessee has stated that affidavits of the husband of the assessee and

his four brothers and the mediator could not be produced before the AO ,

but the same was stated to have been enclosed with the appeal. The ld.

CIT(A) observed that these affidavits were not enclosed by the assessee

as is contended in SOF. The ld. CIT(A) also observed that the assessee

has not submitted any written arguments and/ or documents/evidences to

substantiate his contentions during appellate proceedings. The ld. CIT(A)

observed that in the absence of the aforesaid documents claimed to

have been submitted by the assessee, even no remand report could be

called from the AO. The ld. CIT(A) also disbelieved the claim of the

assessee having received advance of Rs. 16,00,000/- in cash against

sale of property, which was claimed to have been deposited by the

assessee in her bank account. Thus, in nutshell, learned CIT(Appeals)

dismissed the appeal of the assessee in the absence of

evidences/explanation submitted by the assessee to support her

contentions.

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and the ld. Counsel for the assessee Shri Pankaj Gargh, Advocate

opened arguments before the Bench and submitted that there is a delay

of 82 days in filing this appeal belatedly before the Tribunal beyond the

time prescribed u/s. 253(3) of the Act. Ld. Counsel submitted that the

assessee has duly filed application supported with affidavit for

condonation of delay in filing this appeal with ITAT belatedly by 82 days

beyond the time prescribed u/s 253(3). Ld. Counsel for the assessee

drew our attention to the application supported with affidavit filed by the

assessee, and contended that notices u/s. 250 which were issued by the

ld. CIT(Appeals) and uploaded on IT e-portal but the same could not be

seen by the counsel of the assessee Shri R.P. Gupta, Advocate. It is

submitted that Shri R.P. Gupta, Advocate is not fully updated digitally and

hence, since notices were not checked/seen in the e-portal, there was no

compliance by the counsel for the assessee with the learned

CIT(Appeals) and ex-parte appellate order was passed by the ld.

CIT(Appeals) on 14.01.2024. The said appellate order was also not seen

by Shri R.P. Gupta, Advocate. Hence, the appeal could not be filed in

time. It is only when the assessee’s son received SMS from department

on 15.05.2024 to pay outstanding demand, the assessee became aware

of the appellate order passed by the ld. CIT(Appeals). Thereafter, 6 | P a g e

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immediately assessee’s son went to Shri R.P. Gupta, Advocate and

informed him about the demand notice ,then Shri R.P. Gupta looked into

e-portal of Income-tax Department and found uploaded appellate order

dated 14.01.2024 passed by ld. CIT(Appeals). Then the assessee took

effective steps to immediately file the appeal with ITAT by engaging Shri

Pankaj Gargh, Advocate as her counsel for filing the appeal with ITAT.

Thus, prayers were made to condone the delay of 82 days in filing this

appeal belatedly with ITAT beyond the time prescribed u/s 253(3).

CIT(Appeals)’s appellate order as well as notices issued during the

appellate proceedings were duly posted on e-portal of Income Tax

Department and the assessee failed to verify the said portal. It was

submitted that it was a valid service of notices/appellate order passed by

ld. CIT(Appeals). However, ld. Sr. DR fairly left the matter to the

discretion of the Bench so far as prayers of the assessee for condonation

of delay are concerned.

we are of the considered view that the delay of 82 days in filing this

appeal belatedly with ITAT beyond the time prescribed u/s 253(3) need

to be condoned. It is an admitted position that the ld. CIT(Appeals) has

posted the notices issued in the appeal proceedings as well as appellate 7 | P a g e

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order dated 14.01.2024 passed by him on the e-portal of the IT

department. Sr. Sr. DR could not controvert this position. It is also

submitted by the assessee in its application/affidavit of Shri R.P. Gupta,

Advocate that the ld. Counsel for the assessee Shri R P Gupta, Advocate

is not well versed with the digital technology and he did not see/view

notices issued by the ld. CIT(Appeals) as well as appellate order dated

14.01.2024 passed by ld. CIT(Appeals). It is only when SMS was

received by the son of the assessee on 15.05.2024 to pay the

outstanding demand, the assessee became aware about the appellate

order passed by ld. CIT(Appeals). Thereafter, Shri R.P. Gupta, Advocate

was approached by assessee’s son, wherein he opened the e-portal.

These are the initial phases of switching over to technology based digital

working, wherein proceedings are conducted electronically/in a faceless

manner and in the initial phases, there are likely to be glitches including

technical glitches, inadequacy of computer literacy etc. which both the

parties may face and liberal view needs to be taken while condoning the

delay in filing of the appeal. Reference is also drawn to the judgment of

Hon’ble Punjab and Haryana High Court in the case of Munjal BCU

Centre of Innovation and Entrepreneurship, Ludhiana v. CIT(E),

Chandigarh (2024) Live Law (PH)106(Case No. CWP-21028-

2023(O&M), in which Hon’ble Punjab and Haryana High Court has held 8 | P a g e

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that merely uploading of the communication (notice) in the Income Tax

department e-portal is not sufficient mode of communication keeping in

view principles of natural justice which are inherent in income tax

proceedings as also keeping in view provisions of Section 282 of the

1961 Act and Rule 127 of the 1962 Rules. When technicalities are pitted

against advancement of substantial justice, then the Court will lean

towards advancement of justice unless malice or negligence is at writ

large. The assessee is not likely to gain anything by filing this appeal

belatedly. Reference is drawn to the judgment and order of Hon’ble

Supreme Court in the case of Collector of Land Acquisition , Anantnag v.

Mst. Katiji & Ors. 1987 AIR 1353.Thus, in the interest of justice, we

condone the delay of 82 days in filing of the appeal before the Tribunal

belatedly beyond the time prescribed u/s 253(3), and proceed to

adjudicate this appeal on merits. We order accordingly.

there was cash deposit of Rs.16 lakhs in the bank account of the

assessee, which was added by the Assessing Officer to the income of

the assesseeas the sourcesof cash deposit could not be explained. It

was submitted that additional evidences were filed before the ld.

CIT(Appeals), which are duly mentioned in Form No. 35, but the ld.

CIT(Appeals) has stated in the order erroneously that no additional 9 | P a g e

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evidences have been filed. Ld. Counsel for the assessee drew our

attention to paper book carrying 109 pages filed with the Tribunal, which

are in the form of additional evidences which were filed before the

CIT(Appeals), and it was submitted that the CIT(A) has not called for

remand report. The list of additional evidences is enclosed at page 1 of

the paper book, which is reproduced hereunder :

It was prayed that the matter can be restored back to the file of the

Assessing Officer, as these additional evidences requires

verification/enquiry. Our attention was drawn to ground No. 6 wherein 10 | P a g e

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specific prayer has been made by the assessee that for the reasons

mentioned in the facts of the case and since proper compliance could not

be made before the authorities below, the matter can be restored to the

Assessing Officer for reconsideration.

record. We have observed that the assessee did not file return of income

originally with the department u/s 139. The assessee has deposited

Rs.16 lakhs in cash in her bank account on 23.03.2012 in Saving Bank

Account No. 32252355696 with State Bank of India during the year under

consideration. Based on the information gathered by the Assessing

Officer, proceedings u/s. 147 were initiated by the AO for reopening of

the concluded assessment, and notice dated 25.03.2019 u/s. 148 of the

Act was issued to the assessee. The assessee filed return of income

declaring nil income, in response to notice issued by the AO u/s 148. The

assessee has claimed that income chargeable to tax as per provisions of

the Act was Nil and the assessee was not liable to file return of income

u/s. 139(1) of the Act. The assessee has claimed to be agriculturist.

During the course of reassessment proceedings, the assessee submitted

bank statement before the Assessing Officer as well as copy of power of

attorney dated 20.03.2012 and copy of sale deed of two immovable 11 | P a g e

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properties sold by Sh. Sugriv Singh on 07.11.2012 for Rs.10,50,000/-

and Rs.4,45,000/- and claim was made that the assessee received

advance, which was deposited in her bank account. The Assessing

Officer rejected the contention of the assessee because as per Assessing Officer share of the assessee in the property was only 1/20th,

which comes to Rs.74,750/- while the deposits were made of Rs.16 lakhs

in the bank account of the assessee.. Before the ld. CIT(Appeals), the

assessee claimed to have filed additional evidences, which are stated in

Form No. 35, but the CIT(Appeals) was of the view that no additional

evidences were enclosed with the CIT(Appeals) and in the absence of

any evidence/explanation to substantiate the contentions raised by the

assessee to substantiate the case deposits in the bank account of the

assessee to the tune of Rs. 16 lacs, the appeal was dismissed by the ld.

CIT(Appeals). Before us, the assessee has filed paper book carrying 109

pages, which carries gist of documents as under :

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The assessee has claimed that these documents were filed before ld.

CIT(A), but ld. CIT(A) did not took cognizance of these documents and

no remand report was called for by ld. CIT(A) from the AO, on the ground

that these documents were never filed by the assessee. Now, that these

documents are filed by the assessee before the ITAT. It is averred by the

assessee that she was jointly owning the land with her husband and his

4 brothers. It is claimed that all the brother are illiterate and were not

having bank account. It is claimed that they are all engaged in

agricultural activities. It is also claimed that advance was received from

middleman for sale of land in cash as share of sale proceed of property,

which was deposited in assessee’s bank account. As can be seen, the

assessee has filed affidavits of various persons who were claimed to be

family members and the co-owners of the land sold by the assessee, as

well as copy of sale deeds dated 22.08.2012, 03.08.2012 and

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26.11.2012. Copy of bank statement is also enclosed. It is stated that

these documents were filed before the ld. CIT(Appeals), but the

CIT(Appeals) did not take into cognizance and did not call for any

remand report under Rule 46A of the Act from the AO. Since these

documents were filed before the ld. CIT(A) for the first time, the same

requires verification by the authorities. The assessee has claimed to

have received advance with respect to sale of above properties and the

relatives of the assessee have also given their share of sale proceeds

received in cash to the assessee, which stood deposited in the bank

account of the assessee. These documents go to the root of the matter

and require verification and investigation of fact to unravel the truth.

Thus, both the authorities below did not have the advantage of these

documents/evidences, and the orders were passed against the assessee

without consideration of these evidences. In the interest of justice, the

orders of the authorities below are required to be set aside and the

matter is remanded back to the file of the Assessing Officer for de novo

assessment. Assessing Officer shall admit these additional evidences

filed by the assessee and thereafter frame de novo reassessment after

making such verification/enquiries as deemed fit by the Assessing

Officer. The assessee shall cooperate in the de novo reassessment

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proceedings. We clarify that we have not commented on the merits of the

issue arising in this appeal. We order accordingly.

purposes.

Order pronounced in the open court on14.2.2025.

Sd/- Sd/- (SUDHIR KUMAR) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 14.2.2025.

*aks/- Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, Agra

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