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Income Tax Appellate Tribunal, PUNE BENCHES “A” :: PUNE
Before: MEMBER, & DR.DIPAK P. RIPOTE
आदेश/ ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the assessee is against the order of ld.Commissioner of Income Tax(Appeal)[NFAC], under section 250 of the Income Tax Act, 1961 dated 09.04.2024 for the Assessment Year 2014-15. The assessee as per Form No.36 has raised the following grounds of appeal :
“1. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in not condoning delay of 2279 days in filing an appeal and thereby not admitting appeal holding that the submission of the appellant is general and without any supporting. Delay in filing an appeal being unintentional, delay should be condoned and appeal of the appellant should be admitted.
On the facts and in the circumstances of the case and in law, in not considering that there was reasonable cause for not filing the appeal in time.
On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in confirming order under section 144 passed by the learned Assessing Officer confirming the cash deposit in the bank account of Rs 55,17,919 as unexplained income under section 69 of the Act.
On facts and circumstances of the case, the learned CIT(A) erred in not considering the fact that there were no cash deposits in the bank account of the Appellant and the addition made above has been inadvertently by the learned AO.
On facts and circumstances of the case, the learned CIT(A) erred in not following the order passed for the earlier year i.e. AY 2012-13 during which the addition was made on the identical facts and was deleted by the learned CIT(A). The Appellant craves leave to add, alter, amend or withdraw any of the above grounds at or before the hearing of the appeal. All the grounds of appeal stated above are without prejudice to each other.”
Submission of ld.Authorised Representative : 2. The ld.AR for the Assessee submitted that ld.CIT(A) had dismissed the appeal of the assessee without discussing merits of the case. Ld.AR submitted that assessee is an Army Personnel who was Lance Naik at that time. He is frequently transferred at various places because of his nature of job profile. Also, there are many stations where letters are not received in time. In this case, the assessee has never received order u/sec.143(3) for A.Y.2014- 15. Ld.AR invited our attention to the affidavit of the assessee. Ld.AR submitted that Mr.Amit Dhiman(Income Tax Practitioner) was looking after assessee’s Income Tax Matters. He had never informed assessee about the assessment proceedings. Therefore, there was delay in filing appeal before the ld.CIT(A). The delay was not intentional. Ld.AR pleaded that CIT(A) should have condoned the delay and decided the case on merit.
2.1 On merits, ld.AR submitted that the Assessing Officer(AO) had made addition of Rs.55,17,919/- u/sec.69 of the Act alleging that assessee had deposited cash in ICICI Bank Account during Financial Year 2013-14. Ld.AR submitted that assessee do not have Bank Account in ICICI Bank. Ld.AR filed a paper book containing copy of Bank Statement of State Bank of India(SBI). Ld.AR submitted that assessee have account in SBI but not in ICICI Bank. Ld.AR submitted that there are cash deposits of Rs.26,100/- only in the SBI Account of the assessee. Ld.AR submitted that the said Bank Account is duly reflected in the Return of Income filed by the assessee for A.Y.2014-15.
Submission of ld.Departmental Representative : 3. The ld.DR for the Revenue on 11.09.2024 sought time to produce case records of the assessee to verify whether assessee have Bank Account in ICICI Bank or not! 3.1 On 12.09.2024, ld.DR for the Revenue during the hearing produced copy of the ICICI Bank Account which was in the name of Mr.Mithilesh Kuamr. Ld.DR therefore, vehemently argued that assessee have a Bank Account in ICICI Bank and there are cash deposits on various dates. On our request, ld.DR obtained a report from ITO regarding status of addition made for A.Y.2013-14 on identical facts. Ld.DR submitted the report.
Findings &Analysis : 4. We have heard both the parties and perused the records. It is observed that ld.CIT(A) has dismissed the appeal of the assessee on the ground of delay. The ld.CIT(A) in paragraph 3.4 of the order has reproduced the reasons submitted by assessee for delay. However, ld.CIT(A) held that the appeal was filed beyond the time period prescribed u/sec.249(2) of the Act, without sufficient cause. It is mentioned by ld.CIT(A) that there was a delay of 2279 days.
4.1 In this case, assessee has pleaded that assessee had never received copy of assessment order. Assessee submitted before ld.CIT(A) that on 27.03.2023, assessee obtained certified copies of the assessment order from Income Tax Officer and immediately filed appeal on 24.04.2023. It is a fact that assessee is an Army Personnel. We have perused the Affidavit of the assessee and are convinced that there were sufficient reasons for delay in filing of appeal before the ld.CIT(A). We have perused the case records for A.Y.2014-15 and observed that there is no evidence on record of service of impugned assessment order.
We have already mentioned in earlier paragraph that while going through the case records, submitted by ld.DR for A.Y.2014- 15, it was observed that ICICI Bank had submitted Bank Statements for A.Y.2013-14 and A.Y.2014-15, in this context, we had requested ld.DR to find out the status for A.Y.2013-14. Accordingly, ld.DR obtained report from the ITO, Ward-4(1), Pune along with copy of the ld.CIT(A)’s order for A.Y.2013-14.
On perusal, it is observed that for A.Y.2013-14, the Assessing Officer had passed an assessment order on 18.03.2016 u/sec.144 of the Act alleging that assessee had deposited Rs.65,34,065/- in the bank account maintained with ICICI Bank. The assessee had filed appeal against the same before ld.CIT(A) along with certain additional evidences. Ld.CIT(A) called-for a remand report from the ITO, Ward-4(1), Pune. Ld.ITO, Ward-4(1), Pune during the remand proceedings for AY 2013-14, obtained information from ICICI Bank u/sec.133(6) of the Act. Based on the information, ITO, Ward-4(1), Pune has submitted a remand report. The said remand report is reproduced here as under: “ In this regard notice u/s 133(6) of the Act dated 28/07/2022 was issued to the ICICI Bank Dhanbad Branch . In compliance, the reply received from the ICICI Bank Dhanbad Branch (Annexure-A) is as under: - “Dear Sir/ Ma’am, We refer to your letter-bearing no.DIN & Notice No :- ITBA/COM/F/17/2022-23/1044229876(1) Dated 28-07-2022 , received by us with reference to notice under section 133 (6) specific provisions of the income tax Act 1961, with reference to information regarding details of Shri Mithilesh Kumar (Pan:- AQUK5114J). “In this connection, as desired by you we enclose herewith the following details : ****. PAN number Provided AQUK5114J is wrong Pan - Kindly provide correct PAN.
Detail of any other bank account with PAN — We have search with account number provided 028801004993, PAN number BWLPK0044A in the name of Mithilesh Kumar, We have found one
current account number 028805004834 in the name of M/s ION Industries. For more detail regarding Account number 028805004834 in the name of M/s ION Industries please contact base branch:- Deputy Branch Manager Branch Manager Anu singh [226831] VISHAL PAHWA [145424] DBM Direct No BM Direct No + 91 – 8826890925 - DBM Mobile No BM Mobile No +91 8826890925 +91 9873184442 DBM Email ID BM Email ID anu.sirohi@icicibank.com vishal.pahwa@icficibank.com 2. Account opening document with KYC — Attached for account number 028801004993 Current address :- PLOT NO 2 GALI NO 3 KH NO 11/1 DEEP ENCLA VE VIKASH NGR NR HOLY CONVENT SCHOOL NEW DELHI Postal Code 110059 Phone No. +0()919811444183 1. Detail of cash deposit Account statement attached for period 01-04-2012 to 31-03-2013. Kindly take the aforesaid on record in compliance of the notice under section 133(6)/131/ specific provisions of the Income tax Act, 1961.” The letter dated 11/08/2022 again issued to the ICICI Bank mentioning the correct PAN number of the assesee i.e. AQUPK5114H . In response of the same the bank confirmed that the above mentioned account number bearing account no. 028801004993 pertains to Mr. Mithilesh Kumar (PAN number BWLPK0044A). For further verification letter dated 10/10/2022 was again sent to the ICICI Bank Dhanbad Branch. Vide response dated 15/10/2022 the ICICI Bank , Dhanbad submitted that Both account 028801004993 and 028805004934 is linked with same PAN i.e. BWLPK0044A and related to same person i.e. Mr. Mithilesh Kumar BWLPK0044A (Copy Enclosed-Annexure -B). However, on perusal of account opening form for account number 028801004993 provided by the ICICI Dhanbad Branch (Copy enclosed Annexure-C) ,it is noticed that the PAN no. mentioned while opening the account on 12/10/2010 is AQUPK5114H that belongs to the appellant Mr. Mithilesh Kumar s/o Jagdish Singh , which is contradictory to the first statement that Both account 028801004993 and 028805004934 as mentioned in Annexure B are linked with same PAN and related to same person i.e. Mr. Mithilesh Kumar BWLPK0044A(As mentioned in Annexure-‘B\ For substantiating the fact this office has again issued the letter u/s 133(6) of the Act on 15/11/2022 to ICICI Bank Dhanbad Branch . Vide response dated 19/11/2022 the bank has submitted the details(Annexure-D), which are produced as under:- Dear Sir/Mam, Both Account 028801004993 and 028805004834 is related to the same person as per current record:- 1. 028801004993 Customer Name -MITHILESH KUMAR, Mobile Number-9811444183, Address - PLOT NO 2 GALI NO 3 KH NO 11/1 DEEP ENCLAVE, VIKASH NGR NR HOLY CONVENT SCHOOL; NEW DELHI 110059. 2. 028805004834 :- ION INDUSTRIES, PROPRIETOR - MITHILESH KUMAR,Mobile no -9811444183, Address -PLOT NO 2 DEEP,ENCLAVE II GALI NO 3 VIKAS NGR,UTTAM NAGAR NEW DELHI 110059. For more detail realted to the account you may contact to the sourcing branch (Opening and modification not done by Dhanbad 0196 branch). In order to verify the same, a notice u/s 133(6) of the Act dated 06/12/2022 was issued to the source branch i.e ICICI Bank Pascim Vihar New Delhi. The reply received dated 09/12/2022 that “The Captioned PAN(AQUPK5114H) has been modified Dated 30/11/2016 as per customer Request. (Copy enclosed- Annexure- E))” For further verification letter dated 22/12/2022 issued to Mr. Mithilesh Kumar(PAN: AQUPK5114H) s/o Jagdish Singh requesting him to submit documentary evidences regarding his basic details. The assessee vide his response dated 27/12/2022 submitted his reply along with documents (Annexure-F), wherein it is seen that the assessee’s father Name is Shri Jagdish Singh , Mother Name Mrs. Bindachal Devi and spouse name is Mrs. Somi Devi. The response submitted as under: -
“ I am an army person and currently posted in Nasik, Maharashtra. I have received a demand against some transactions made in a Bank Account on my name. But I have no such account and the mentioned Cash transactions were not done by me. I also visited the ICICI Bank (mentioned in notice) but the bank officials informed me that no account exists in my name, also I attach documents Sir please process my notice and remove the demand as I am just an army person and unable to pay the demand.” For further verification, a letter calling information u/s 133(6) of the IT Act 1961 dated 04/10/2022 to State Bank Of India Kaimur Rohtas Bihar Branch in the case of Mr. Mithilesh Kumar (PAN:AQUPK5114H) (As per the ITS data- Copy Enclosed- Annexure-G) for providing KYC details, account opening form and statement of account no. 30939836387 for the period 01/04/2012 to 31/03/2013. In response to the same vide response dated 11/10/2022 the SBI Bank provided the KYC details, account opening form and statement of account no. 30939836387 for the period 01/04/2012 to 31/03/2013 which belongs to the assessee Mr. Mithilesh Kumar (PAN:AQUPK5114H) s/o Jagdish Singh (Copy Enclosed- Annexure-H). On perusal of reply received from ICICI Bank Dhanbad Branch,ICICI Paschim Vihar Delhi Branch and State Bank Of India Kaimur Rohtas Bihar Branch and in response to this office letters for providing information u/s 133(6) of the IT Act and documents enclosed, it is observed that the given account number 028801004993 belonged to the appellant Mr. Mithilesh Kumar (PAN:AQUPK5114H) s/o Jagdish Singh during opening of account on 12/10/2010 and modification of PAN no linked with the account has been made on 30/11/2016 as per customer Request. (Copy enclosed-Annexure-E)) and presently the account number 028801004993 belongs to Mr. Mithilesh Kumar s/o Gopal Prasad (PAN:BWLPK0044A) resident of Gali No. 3, Deep Enclave Part-2, Vikas Nagar Uttam Nagar DX Mohan Garden West Delhi 110059.On perusal of account opening form (Annexure-C) for account no. 028801004993 it is noted that the PAN no. quoted is AQUPK5114H and, the mother name mentioned is Urmila Devi and spouse name mentioned as nominee is Mrs. Kiran , however, as per document submitted by the assessee (Annexure- F) the mother name is Bindachal Devi & the Spouse name is Mrs. Somi Devi. It is also found that there is one more current account number 028805004834 in the name of M/s ION Industries which belongs to Mithilesh Kumar (PAN:BWLPK0044A) s/o Gopal Prasad. It is also noted that during the assessment proceedings when the notice u/s 133(6) of the Act was issued to the bank PAN number was not quoted by then AO.
In the light of facts and circumstances discussed above, the additional evidence should be considered. Further, the undersigned is of the opinion that the cash deposits are done by Mr. Mithilesh Kumar (PAN:BWLPK0044A) s/o Gopal Prasad 8s not done by the appellant Mr. Mithilesh Kumar (PAN:AQUPK5114H) s/o Jagdish Singh, hence, that the appeal should be decided on merits.”
Based on the said remand report, ld.CIT(A) for A.Y.2013-14 concluded that addition has been incorrectly made in the name of assessee Mr.Mithilesh Kumar, S/o.Jagdish Singh whose PAN Number is AQUPK5114H, whereas the Bank Account pertains to Mr.Mithilesh Kumar, S/o.Gopal Prasad - having PAN Number BWLPK0044A. The Department has accepted ld.CIT(A)’s order for A.Y.2013-14 and not filed appeal before the ITAT for A.Y.2013-14 as evident from the letter PN/PCIT-2/Judl/Order 250/2022-23/2660 dated 02/03/2023 of office of Ld.Pr.Commissioner of Income Tax-2, Pune. It means the Income Tax Department has accepted that the impugned bank account does not belong to the assessee.
6.1 The facts pertaining to A.Y.2014-15 are identical to the A.Y.2013-14. The AO has made addition alleging that assessee had made cash deposits in ICICI Bank Account No.028801004993 during A.Y.2014-15. However, as observed by ld.CIT(A) for A.Y.2013-14 based on the remand report of the ITO, that Account No.028801004993 belongs to Mr.Mithilesh Kumar, S/o.Gopal Prasad having PAN No.BWLPK0044A, and does not belong to the Assessee i.e.Mr.Mithilesh Kumar, S/o.Jagdish Singh. We have perused the copy of Account Opening Form of the impugned account, wherein Mithilesh Kumar’s Mother’s Name is mentioned as “Urmila Devi” and copy of Driving License was enclosed with the said Form which shows Mithilesh Kumar, S/o.Gopal Prasad. The said copy of Driving License is duly attested by ICICI Bank Official on 12.10.2010. Along with said form, copy of BSES Electricity Bill is enclosed which is showing name Mithilesh Kumar, S/o.Gopal Prasad and it is duly attested by ICICI Bank Official. We have verified copy of PAN Card, PAN Number “AQUPK5114H”, of the assessee wherein assessee’s name is written as “MITHILESH KUMAR and father’s name is written as Jagdish Singh .
6.2 In these facts and circumstances of the case, we are convinced that the impugned ICICI Bank Account does not pertain to assessee, hence, no addition can be made based on the said Bank Account. Accordingly, the AO is directed to delete the addition of Rs.55,17,919/-. Hence, grounds of appeal raised by the assessee are allowed.
In the result, appeal of the assessee is allowed. Order pronounced in the open Court on 18th September, 2024.