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Facts
The assessee deposited Rs. 61.52 lakhs in cash in a joint bank account during FY 2011-12. The AO made an addition of Rs. 19.70 lakhs due to unexplained cash deposits and negative cash balance, as the assessee failed to provide proper documentation or produce parties confirming advance payments for land sales. The CIT(A) dismissed the appeal due to the assessee's non-response to notices.
Held
The Tribunal condoned a 386-day delay in filing the appeal, finding no willful default as the CIT(A) order was not served on the email ID provided in Form 35. The case was remanded to the CIT(A) for fresh adjudication on merits, allowing the assessee to present all documentary evidence.
Key Issues
The key legal issues were the condonation of delay in filing the appeal due to improper service of the CIT(A) order and the unexplained cash deposits in the bank account.
Sections Cited
Section 143(3), Section 147, Section 250, Section 139, Section 148, Section 151, Section 143(2), Section 69A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR.
Before: SH. MANOJ KUMAR AGGARWAL & SH. UDAYAN DASGUPTA
ORDER Per: Udayan Dasgupta, J.M.: This appeal is filed by the assessee against the order of ld. CIT (A), NFAC, Delhi, passed u/s 250 of the Act, 1961 ( henceforth the Act ) vide order dated 15.09.2023 which has emanated from the order of AO, Income Tax Officer, Ward- 2(1), Bathinda, passed u/s 143(3) r.w.s. 147 of the Act, vide order dated 28.11.2019.
Condonation of delay: It is pointed out by the registry that this appeal is belatedly filed by 386 (three hundred eighty six days). The assessee has filed an 2 Assessment Year: 2012-13 application for condonation of delay along with an affidavit where it is submitted that the appeal could not be filed due to lack of service of order via e-mail and as such, the assessee was not aware of any existing order passed by the ld. CIT(A). He further submitted that the e-mail id mentioned in Form 35 was advocate.mohitjindal @gmail.com and the order u/s 250 has been served on Jasdev15379@gmail.com in support of which he has enclosed a screen shot of the portal. 2.1 He further drew our attention to Notification No.139 dated 28.12.2021 where it is mandatory for the ld. CIT(A) to communicate the notice on the e-mail id available in form, i.e. Form 35 and further he also relied on the decision of the Hon’ble jurisdictional High Court in the case of Munzal BCU Entre of Innovation and Entrepreneurship, Ludhiana vs. CIT (Exemption) reported in 160 taxmann.com 629, to argue that non service of notice and orders in the email id of the assessee cannot be termed as complete and proper service and as such he prayed for condoning the delay of 386 days and for admission of the appeal to be heard on merits. 2.2 The ld. DR has no objection, considering the screen shots of the portal. 2.3 As such considering the submission and contents of the affidavit filed by the assessee we find that there is no wilful or intentional default on the part of the assessee and the delay caused is unintentional and as such, we condone the delay of 3 Assessment Year: 2012-13 386 days, in absence of any communication from the office of the ld. CIT(A) in the e-mail id provided in Form 35. As such, we admit the appeal for hearing on merits.
The brief facts emerging from records are that the assessee has made cash deposit in his bank account with PNB during the F.Y. 2011-12 (relevant to the assessment year under appeal, amounting to Rs.61.52 lakhs). 3.1 In absence of any return being filed u/s 139 , notice u/s 148 has been issued with necessary approval from higher authorities against which the assessee has filed this return declaring a total income of Rs.83,500/- under the head other source plus an amount of Rs.1.68 lakhs under the head agricultural income. The source of deposit of cash in bank account was explained by the assessee to have arisen out of sale proceeds of land (including advance against land obtained from some parties). However, in absence of proper submission being made before the AO and in failure to produce the persons confirming the advance as per agreement against agricultural lands , the deposit of cash in the bank account has not been accepted by the AO and assessment has been completed on a total income of Rs.20.53 lakhs which included an addition of Rs.19.70 lakhs on account of negative cash balance as worked out in the assessment order.
The matter carried in appeal before the ld. CIT(A), has been dismissed by the ld. first appellate authority in absence of any response or submissions to the various notices issued by the ld. CIT(A) by observing as follows: “The onus is upon the assessee to prove positively the source and nature of the money which was received during the accounting year. In the absence of any explanation of the assessee the revenue authorities are entitled to draw the inference. that the receipt is of an income nature; in other words, the burden of proof in such a case is not upon the revenue authorities but the burden of proof is upon the assessee to show that the item of receipt is not of an income nature. Following observations are made from the material available on record- 1) Appellant had not filed ROI for the AY under appeal consideration 2) Information was available to department that Appellant had deposited large amount of cash in the bank account 3) Notice under section 148 was issued after taking statutory permission under section 151 4) Notice was issued for filing of return and AA finally filed ROI in response to 148. 5) Notice under section 143(2) was issued and queries were raised. 6) Doubts arose on the documentation provided during the assessment proceedings as Sale Deed was not notarised and on the claim that huge advance money was paid despite lack of credible documentation
7) Appellant was asked to produced original agreement to sell and to produce the parties to agreement. However, none were presented nor was agreement produced for verification nor confirmations were filed. 8) In all fairness Ld.JAO worked out peak value and added Rs.19.70 Lacs added it resorting to provisions of 69A 9) No documents have been produced in appeal proceedings to support the grounds of appeal
. Grounds of appeal are adjudicated as below- 1) General ground and hence not adjudicated as such 2) Dismissed-Ld.JAO has duly considered all the documentation made available by appellant during the assessment proceedings 3) Dismissed-Ld.JAO has in all fairness worked out peak credit and fair amount of addition has been made 4) General ground and hence not adjudicated as such 7. Thus, the order of LJAO is upheld as onus has remained undischarged on part of appellant. Thus, on merits, the grounds of appeal are rejected and appeal for A.Y. 2012-13 is dismissed.
8. As a result, appeal is Dismissed.”
5. In course of hearing before the Tribunal, the ld. AR of the assessee filed a short paper book containing copies of bank statement of PNB in A/c No. xxxxxx547691 being the bank a/c jointly held by the assessee Jasdev Singh and his brother Ravinder Singh, along with copies of reply dated 24.09.2019 filed before the AO where it has been stated that the assessee has not purchased or sold any immovable property and the bank a/c in which the cash has been deposited is joint 6 Assessment Year: 2012-13 bank a/c in his brother Sh. Ravinder Singh and the deposit of cash is out of sale proceeds of agricultural land owned by his brother. 5.1 He has also filed a copy of the sale deed as evidence of sale of land by the brother of the assessee Mr. Ravinder Singh along with copies of agreement for sale and has prayed for deleting the addition on the basis of these documentary evidences now available.
The Ld. DR relied on the order of the ld. CIT(A) and submitted that since these documentary evidences has never been properly examined in absence of any representation by the assessee before the ld. first appellate authority he prayed for verification of the same.
We have heard the rival submissions and considered the materials on record and we find that notices had not been issued in the email id as stated in Form 35, as a result of which no proper representation could be made by the assessee before the ld. CIT(A). 7.1 As such in the interest of justice, we remand the matter back to the Ld. CIT(A) for fresh adjudication on the all the grounds contained in Form 35 on merits after allowing reasonable opportunity of being heard and we direct the assessee to furnish all documentary evidence and submission in support of his contention and to fully cooperate in appellate proceedings.
We have not expressed any opinion on merits.
All issues are left open.
In the result, the appeal of the assessee is allowed for statistical purposes.