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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI
आदेश / O R D E R
Per Bench:
The captioned three appeals are filed by same assessee, the details are as under:
(i) is directed against appeal-order dated 26.04.2023 passed by learned Commissioner of Income-tax (Appeals), NFAC, Delhi [“CIT(A)”] which in turn arise out of assessment-order dated 26.03.2015 passed by ITO-3(1), Bhopal
Shri Pramod Kumar Singh, Bhopal to 302/Ind/2023 AYs. 2007-08 [“AO”] u/s 144 read with section 147 of the Income-tax Act, 1961 [“the Act”]. (ii) is directed against appeal-order dated
26.04.2023 passed CIT(A) which in turn arise out of penalty-order dated 28.09.2015 passed by AO u/s 271(1)(c) of the Act.
(iii) is directed against appeal-order dated
15.09.2022 passed CIT(A) which in turn arise out of penalty-order dated 28.09.2015 passed by AO u/s 271(1)(b) of the Act.
Since these appeals relate to same assessee and the issued involved are inter-related, they were heard together at the request of parties and are being disposed of by this consolidated order for the sake of convenience, brevity and clarity.
The registry has informed that the there is a delay of 46 days in first two appeals and 269 days in third appeal, therefore all three appeals are time-barred. Ld. AR for assessee submitted that the assessee has filed an application for condonation of delay supported by an affidavit on stamp, the same is scanned and re-produced below:
Shri Pramod Kumar Singh, Bhopal to 302/Ind/2023 AYs. 2007-08
Shri Pramod Kumar Singh, Bhopal to 302/Ind/2023 AYs. 2007-08
Drawing our attention to the averments made by assessee, Ld. AR submitted that the assessee is a senior citizen. The assessee’s business had closed and there is no source of income. The assessee is suffering from high blood pressure and heart disease, copies of medical reports/prescriptions of various dates and doctors are filed at Page 1-39 of Paper-Book. The assessee also met a serious road accident in the year 2021. The assessee’s daughter also got divorced and the legal battle is going since the year 2019. The assessee’s twin brothers also expired in the year 2020. This way, the assessee had been passing through an extremely difficult phase of life. In assessee’s words, he is facing a ‘merciful’ state. Therefore, due to such onerous circumstances, the assessee could not make statutory compliances.
Ld. AR submitted that there is no deliberate lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand to derive any benefit because of delay. He prayed with folded hands that the sole reason of delay is the onerous circumstances only, therefore a liberal approach be taken and delay be condoned to meet the end of justice. Ld. DR for Revenue was fair enough in not raising any objection against assessee’s prayer and left the matter to the wisdom of Bench. We have considered the explanation advanced by assessee and in absence of any contrary fact or material on record, the assessee is found to have a ‘sufficient cause’ for delay in filing present appeals. We find that section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if there is a sufficient cause for not presenting appeal
Shri Pramod Kumar Singh, Bhopal to 302/Ind/2023 AYs. 2007-08 within prescribed time. It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice-oriented approach. Thus, taking into account the provision of section 253(5) and the decision of Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.
Briefly stated, the background facts leading to present appeals are such that the AO, on the basis of AIR information revealing that the assessee had made cash-deposits in bank a/c, issued notice u/s 148 dated 28.02.2014 to initiate proceeding u/s 147 of the Act. The notice issued by AO u/s 148 as well as subsequent notices issued u/s 142(1) from time to time remained uncompiled by assessee. Ultimately, the AO framed assessment u/s 144 vide assessment-order dated 26.03.2015 determining total income at Rs. 35,02,709/- consisting solely of the addition u/s 68 on account of unexplained deposits in bank a/c. The AO also initiated penalty proceeding u/s 271(1)(c) for concealing particulars of income as well as u/s 271(1)(b) for non-compliances of notices u/s 142(1). Ultimately, vide order dated 28.09.2015, the AO imposed penalty of Rs. 12,00,000/- u/s 271(1)(c) qua the impugned addition of Rs. 35,02,709/- made in assessment-order.
Further, the AO, vide a separate order dated 28.09.2015, imposed penalty of Rs. 40,000/- u/s 271(1)(b) for non-compliances of notices u/s 142(1).
Shri Pramod Kumar Singh, Bhopal to 302/Ind/2023 AYs. 2007-08 Against assessment-order as well as both penalty-orders as aforesaid, the assessee went in three separate appeals to CIT(A) but could not prosecute on the dates of hearing fixed by CIT(A). Therefore, the CIT(A) dismissed those appeals for non-prosecution. Now, the assessee has come in captioned appeals before us assailing the orders of lower authorities.
During hearing, it transpired that all three original orders by AO as well as the orders of first-appeals by CIT(A) have been passed ex-parte due to non-representation by assessee. It further emerged (i) that the AO has made addition in assessment-order in absence of details by assessee; (ii) the penalty u/s 271(1)(c) is linked with the outcome of assessment; and (iii) the penalty u/s 271(1)(b) is also linked with compliances by assessee during assessment-proceeding. Ld. AR for assessee submitted that considering assessee’s advanced age and extremely difficult state of life, it would be most appropriate to restore these matters back to AO for adjudication afresh in accordance with law after considering assessee’s representation. He further acknowledged that the assessee will co-operate the AO and ensure adequate representation. Ld. DR for revenue fairly agreed to the proposal of Ld. AR. In view of these submissions of parties and to afford substantial justice to assessee, we are agreeable to the prayer made before us. Accordingly, we remit all three matters to AO for consideration afresh after giving necessary opportunities to assessee. Needless to mention that the AO shall take a proper view in accordance with law after considering assessee’s representation without being influenced by his previous orders. The Shri Pramod Kumar Singh, Bhopal to 302/Ind/2023 AYs. 2007-08 assessee is also directed to make adequate representation before AO failing which the AO shall be at liberty to pass orders as thought fit.
Resultantly, all these appeals are allowed for statistical purposes.
Order pronounced in open court on 30.04.2024