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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
This appeal by the assesse is directed against the order dated 29.12.2023 of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centers,(NFAC) Delhi for A.Y.2013-14.
The assessee has raised following grounds of appeal.
Gorelal Parmar “The Id AO was not justified in passing the order, which is bad-in- 1. law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.
2. The Id CIT(A) was not justified in confirming the order, which is bad- in-law, void ab initio, barred by limitation, illegal, contrary to the facts and circumstances of the case, liable to be annulled.
3. The Id CIT(A) was not justified as opportunity for explaining the delay was granted. 4. The Id CIT(A) was not justified in confirming the addition of Rs. 1,04,70,000/- as unexplained money u/s 69A. 5 The ld CIT(A) was not justified in confirming the application of section 69A moreover adopting section 115BBE. 6. The appellant carves leave to add, amend or modify any of the grounds of appeal.”
The Ld. AR of the assessee has submitted that the appeal of the assessee has been dismissed by CIT(A) on the ground of barred by limitation. He has pointed out that the brief reasons for delay were explained in the Form-35 and it was submitted that the assessee has duly deposited the appeal fee on 27.4.2022 well within the period of limitation for filing the appeal and the appeal papers were handed over to the Counsel of the assessee for filing the appeal. However, due to the sickness and other assignments of the counsel the appeal could not be filed in time. The Ld. AR has further submitted that CIT(A) has dismissed the appeal of the assessee without even issuing a show cause notice to explain the delay to the satisfaction of the CIT(A). He has further submitted
Gorelal Parmar that the assessee has now filed an application for condonation of delay which is supported by the affidavit of the assessee as well as the affidavit of the counsel of the assessee along with the medical reports of the counsel of the assessee. Thus, Ld. AR has prayed that the delay of 5 months in filing the appeal before CIT(A) may be condoned since the appeal of the assessee was dismissed in limine by CIT(A). Further the assessment order was also passed u/s 144 of the Act and therefore, the matter may be remanded to the record of the A.O for deciding the same afresh. He has referred to the assessment order and submitted that the assessee in reply to show cause notice issued along with the draft assessment order has explained the source of deposit made in the bank account as sale proceeds of the agricultural land owned by the assessee along with the other corners however, the same was not appreciated by the A.O while passing the order. Even before CIT(A) the assessee explained the source of deposits in the bank account as sale consideration of the agriculture land but the appeal of the assessee was dismissed in limine.
On the other hand Ld. DR has not raised any serious objection if the delay in filing the appeal is condoned by considering the illness of the counsel of the assessee supported by the medical reports. Ld. DR has also fairly submitted that since the assessment order was also passed u/s 144 of the Act therefore, the matter may be remanded to the record of the A.O for fresh adjudication after verification and examination of the supporting evidences to be filed by the assessee. 3
Gorelal Parmar 5. We have considered the rival submissions as well as the materials on record. There was a delay of 5 months in filing the appeal before CIT(A). The CIT(A) has recorded the reasons as explained by the assessee in Form-35 at page No.12 of the impugned order as under:
“Grounds/Reasons for Condonation of Delay: In this regard, the relevant portion Column 15 of the Form 35 filed by the Appellant on 03/10/2022 for Condonation of Delay is reproduced hereunder for reference :- "The appellant had duly deposited appeal fee of Rs. 1,000/- on 27- 04- 2022 ie, well within the time available for filling of appeal. The appellant had duly handed over the challan for appeal fees and other relevant documents to the counsel for flling of appeal. However, due to sickness and other assignments of the counsel the appeal could not be fled in time".
5.1 Thus, it is clear that the assessee explained the reasons in Form-35 for delay in filing the appeal before CIT(A). The fact of payment of appeal by the assessee on 27.12.2022 is well within the period of limitation is also not disputed either by the CIT(A) or by the Department. The CIT(A) has dismissed the appeal of the assessee in limine by giving the reasons as under:
“At the outset, the appeal was instituted in this office on 03/10/2022 and it is imperative to state here that the impugned appeal is belatedly filed since the date of service of the order appealed against, as per Form 35, has been stated to be 01/04/2022 and the appeal memo is not accompanied with any petition seeking condonation of delay in preferring the impugned appeal. As per the provisions of Sec. 249 (2), an appeal before the CIT(A) is to be filed within 30 days of the receipt of notice of demand. Further, the delay may be condoned only when the CIT(A) is satisfied that the appellant had sufficient cause for not presenting it within the due date.
Gorelal Parmar Without prejudice to the above observations and defect, powers have been conferred upon the undersigned under Section 249(3) of the Income Tax Act, 1961 to admit an appeal after the expiration of the said period (of preferring an appeal as prescribed u/s 249(2) of the Act) incase, the Commissioner of Income Tax (Appeals) is satisfied that the appellant had sufficient cause for not presenting it within that period. Unfortunately, the appellant has neither furnished any petition seeking condonation of the delay in filing the appeal nor has he satisfactorily explained the purported 'sufficient cause for not preferring the appeal within the time limit as prescribed under Section 249(2) of the Income Tax Act, 1961. the appellant has not explained the purported 'sufficient cause' for not preferring the appeal within the time limit as prescribed under Section 249(2) of the Income Tax Act, 1961.”
5.2 Thus due to the reasons of not filing the application for condonation of delay the CIT(A) has declined to condone the delay in filing the appeal. It is pertinent to note that CIT(A) has not issued any notice to the assessee much less a show cause notice before dismissing the appeal of the assessee in limine on the ground of delay. Therefore, there is a violation of principle of natural justice when the appeal of the assessee is dismissed without giving an opportunity of hearing to the assessee. Now the assessee has filed an application for condonation of delay which reads as under:
To, CIT (Appeals) NFAC, Delhi Sub: Application for Condonation of delay That in the present case the assessment order is dated 29th March, 2022 which was received by me on 01 April 2022 the appeal could have filed up to 01" May, 2022 however the appeal could have been filed only on 03 October, 2022. The reason for the delay is that I contacted Shri Shailendra Kumar Singh (Advocate) and appointed him as my counsel to file the appeal and further contest the matter. As per his instructions I also deposited the challan on 27/04/2022. 5
Gorelal Parmar However later on after giving him the challan 1 presumed that he must have filed the appeal however it transpired in the month of October that he has not filed the appeal due to medical reasons in his family and for which an Affidavit in this regard is enclosed given by Shri Shailendra Kumar Singh (Advocate). It is submitted that the delay is inadvertent and due to medical reasons and there are no mala fide or latches on my part or on the part of Shri Shailendra Kumar Singh (Advocate). It is therefore submitted that the delay in filing the appeal before the Learned CIT (Appeal) may kindly be condone and the appeal be heard on merits. गोरेलाल Gorelal Parmar (Appellant)
5.3 This application is supported by the affidavit of the assessee as well as the affidavit of the counsel of the assessee Shri Shailendra Kumar Singh, Advocate along with the medical report of the counsel of the assessee. On perusal of the contents of the affidavit filed by the assessee along with the affidavit of the counsel and medical report we find that the counsel of the assessee was undergoing the treatment during the said period and was also hospitalized for the purpose of surgery performed in the hospital.
Further when the assessee already took steps to file the appeal within the period of limitation by depositing the appeal fee then the delay in filing the appeal due to the illness of the counsel who has undergone the surgery as well as under the medical treatment is a Gorelal Parmar reasonable cause explained by the assessee. Accordingly we are satisfied that the assessee was having a sufficient cause for not filing the appeal before the CIT(A) within the period of limitation.
Therefore, in the facts and circumstances of the case and in the interest of justice we condone the delay of 5 months in filing the appeal before CIT(A).
The A.O has made an addition of Rs.1,04,70,000/- on account of cash deposit in the bank account of the assessee while passing the assessment order u/s 147 r.w.s 144 of the Act. Though the assessee explained the source of deposits in response to the show cause notice for draft assessment as sale of agricultural land however, the A.O did not accept the said explanation and also did not conduct any further inquiry. Since the CIT(A) has dismissed the appeal of the assessee in limine therefore, the issue involved in the appeal of the assessee was not adjudicated by the CIT(A) on merits. Accordingly in the facts and circumstances of the case the impugned order of CIT(A) is set aside and the matter is remanded to the record of the jurisdictional A.O for fresh adjudication after verification, examination and consideration of the supporting
Gorelal Parmar evidence to be filed by the assessee. Needless to say the assessee be given appropriate opportunity of hearing before passing the fresh order.
In the result appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 26.07.2024.