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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SAKTIJIT DEY & SHRI RAMIT KOCHAR
PER SAKTIJIT DEY, J.M.
Instant appeal by the assessee is directed against the order dated 4th July 2012, passed by the learned Commissioner (Appeals)– 19, Mumbai, for the assessment year 2009–10.
There is a delay of 78 days in filing the present appeal. Assessee has filed a petition seeking condonation of delay supported by an affidavit. As per the contents of the delay condonation petition
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and averments made in the affidavit, the mother of the assessee fell ill which prompted the assessee to go to his native place to attend to his ailing mother. It is submitted, the health of his mother did not improve and she finally expired on 29th May 2012. It is further submitted, after completing the last rites of his deceased mother and attending to some other work the assessee came back to Mumbai. It is stated, due to these reasons, the assessee could not pay his attention to the filing of appeal resulting in delay. Learned Authorised Representative reiterating the cause of delay has stated in the delay condonation petition and affidavit submitted, delay in filing of the appeal was for bonafide and genuine cause and not due to any latches and negligence on the part of the assessee.
Learned Departmental Representative on the other hand, objecting to the condonation of delay submitted, the assessee having failed to offer a reasonable explanation for condonation of delay the appeal should be dismissed in limine as barred by limitation. In support of his contention, the learned Departmental Representative relied upon a decision of the Hon'ble Supreme Court in Esha Bhattarjee v/s Managing Committee of Raghunathpur Nagar.
We have considered the submissions of the parties on the issue of condonation of delay. At the outset, we may observe, as per
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section 253(5), the Tribunal has been empowered to admit an appeal filed beyond the prescribed period of limitation if it is satisfied that there was sufficient cause for not presenting it within the prescribed period. Therefore, whether the delay is to be condoned in a particular case will depend exclusively on the facts involved in that case as it is a purely factual issue depending upon the satisfaction of the appellate authority with reasonableness of cause of delay. Therefore, condonation or otherwise of delay in a particular case cannot be decided simply on the basis of case laws without looking at their application to the facts involved. In the present case, it has not been disputed that assessee’s mother fell ill and ultimately expired on 25th September 2012. The appeal has been filed before the Tribunal by the assessee on 26th December 2012, with a delay of 78 days. In our view, the illness of assessee’s mother and her ultimate death prevented the assessee from attending to his normal work which resulted in delay of filing the present appeal. Therefore, being satisfied with the assessee’s explanation regarding cause of delay, we are inclined to condone the delay and admit the appeal for hearing on merit.
As far as the merits of the issues are concerned, the solitary issue arising for consideration is in relation to addition of an amount
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of ` 12 lakh as unexplained income of the assessee under section 69A of the Act.
Brief facts are, assessee an individual is director of M/s. Dr. Sahu’s Clinical Services Pvt. Ltd. Besides, the assessee is also engaged in providing consultancy services to various pharmaceutical companies. For the assessment year under consideration, the assessee filed his return of income on 17th September 2009, declaring total income of ` 11,58,470. In course of assessment proceedings, the Assessing Officer while examining assessee’s bank account with ING Vysya Bank Ltd. at Cuttack, found a cash deposit of ` 12 lakh. When he called upon the assessee to explain the source of such cash deposit, it was submitted by the assessee that they are out of petty amounts withdrawn by his wife Smt. Kalpana Sahu, sale of gold ornaments by her. The Assessing Officer, however, was not convinced with the explanation of the assessee. He observed, bill copies of sale of gold ornaments were photocopies and were not even stamped. The bills neither contained bill number, telephone number nor any other details. The Assessing Officer alleged that the original bills were not produced. Therefore, verification of the bills could not be done. He also disbelieved assessee’s explanation that some of the cash deposits were out of petty amount withdrawn by
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his wife from another bank account. The Assessing Officer observed that assessee’s wife did not file any return of income for the assessment year 2009–10, though, return of income for other assessment years were filed regularly. Thus, on the aforesaid basis, the Assessing Officer concluded that cash deposits made in the bank account has to be treated as unaccounted money under section 69A of the Act and accordingly, added back to the income of the assessee. Being aggrieved of such addition, the assessee preferred appeal before the learned Commissioner (Appeals).
The learned Commissioner (Appeals) after considering the submissions of the assessee in the light of facts and material on record and observations of the Assessing Officer in the assessment order, found that though assessee’s wife staying at Cuttack claimed to have received salary from services rendered in Mumbai and deposited in her bank account in Axis Bank but the nature of service rendered by her was not explained. He observed that the claim of the assessee that his wife has sold gold jewellery and deposited the amount in the bank account is also not substantiated with credible evidence. He submitted, though, the affidavit of Smt. Sahu was filed in support of sale of jewellery but the same is not admissible as evidence. Thus, ultimately, the learned Commissioner (Appeals)
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concluded that the explanation offered by the assessee to explain the cash deposit is a cooked–up story. Accordingly, he confirmed the addition made by the Assessing Officer.
Learned Authorised Representative reiterating the stand taken before the Departmental Authorities submitted, analysis of the assessment and the order of the learned Commissioner (Appeals) clearly show that they have reached their conclusion purely on surmises and conjectures without any cogent evidence. He, therefore, submitted the addition made should be deleted. Learned Authorised Representative submitted, in case of assessee’s wife addition on account of short term capital gain from sale of jewellery was made. Therefore, the same addition cannot be made at two hands. Learned Authorised Representative submitted the allegation of the Assessing Officer that assessee’s wife has not filed return of income for assessment year 2009–10 is also not correct and is a misstatement of fact. He submitted, not only assessee’s wife filed her return of income for assessment year 2009–10, but an assessment has also been made on her and she is in appeal against such assessment order which is pending before the learned Commissioner (Appeals).
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Learned Department Representative on the other hand relied upon the order of the learned Commissioner (Appeals).
We have considered the submissions of the parties and perused the material available on record. Undisputedly, cash deposit of ` 12 lakh was found in the bank account maintained with ING Vysya Bank Ltd., Cuttack, standing in the name of assessee’s wife Smt. Kalpana Sahu, as claimed by the assessee. While explaining the source of such cash deposit, it has been stated by the assessee that his wife earns income from salary and deposits it in another bank account with Axis Bank. Over the years, she has withdrawn some amount from the bank account and deposited in ING Vysya Bank. It has further been stated that an amount of about ` 6 lakh was received from sale of jewellery by his wife which was also deposited in the bank account. To prove such fact, the assessee has submitted photocopy of certain bills which have been disbelieved by the Departmental Authorities. However, on a perusal of assessment order passed in case of assessee’s wife, for the very same assessment year, a copy of which is at Page–13 of the paper book submitted by the assessee, it is noticed that assessee’s wife Smt. Kalpana Sahu claimed to have filed her return of income for the impugned assessment year at Cuttack on 28th March 2011, and copy
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of acknowledgement of the return of income was also submitted in the course of assessment proceedings before the Assessing Officer at Mumbai. However, the Assessing Officer opined that the return of income claimed to have been filed by her at Cuttack is unreliable. On what basis, the Assessing Officer expressed such opinion is not known. When the assessee claimed to have filed return of income and submitted the acknowledgment, the Assessing Officer could have easily verified authenticity of her claim by making enquiry from Income–tax Office at Cuttack. Further, it is observed from the assessment order of Smt. Kalpana Sahu that during assessment proceedings she stated to have received an amount of ` 9 lakh as salary from Dr. Sahu’s Clinical Services Pvt. Ltd. and another sum of ` 8.50 lakh as professional fees. This claim of Smt. Kalpana Sahu is subject to verification as her appeal before the learned Commissioner (Appeals) is still pending. It is further noticed that as far as claim of sale of gold jewellery is concerned, the Assessing Officer while completing the assessment in the case of Smt. Kalpana Sahu has assessed short term capital gain of ` 5.99 lakh on sale of gold jewellery. That being the case, the assessee’s claim that a part of deposit is from sale proceeds of gold jewellery cannot be ignored / brushed aside without proper enquiry. Since the appeal of the
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assessee’s wife is pending before the learned Commissioner (Appeals), as stated by the learned Authorised Representative before us where the claim of receiving salary and professional income are subject to examination, we are inclined to restore the issue relating to addition of ` 12 lakh to the file of the learned Commissioner (Appeals) to be considered afresh in terms of the decision to be taken in the appeal relating to assessee’s wife Smt. Kalpana Sahu. Accordingly, we set aside the impugned order of the learned Commissioner (Appeals) and restore the matter back to his file for deciding afresh after providing due opportunity of being heard to the assessee and keeping in view the acceptability or otherwise of receipt of salary and professional income in Smt. Kalpana Sahu’s case. The learned Commissioner (Appeals) should also examine in proper perspective assessee’s claim that a part of cash deposit was out of sale of gold jewellery by his wfe keeping in view the fact that capital gain from sale of jewellery has been added at the hands of assessee’s wife. He should also examine whether the deposits made in the bank account relates to assessee or his wife keeping in view the claim of assessee’s wife Smt. Kalpana Sahu, that she has received salary and professional income. With the aforesaid
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observation, the matter is restored back to the file of learned Commissioner (Appeals).
In the result, assessee’s appeal is allowed for statistical purposes. Order pronounced in the open Court on 15.06.2016
Sd/- Sd/- SAKTIJIT DEY RAMIT KOCHAR ACCOUNTANT MEMBER JUDICIAL MEMBER
MUMBAI, DATED: 15.06.2016 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary
(Dy./Asstt. Registrar) ITAT, Mumbai