BHIKHUBHAI KESHAVBHAI MISTRY,BHARUCH vs. INCOME TAX OFFICER, WARD - 1(5), BHARUCH

Assessee represented by Shri Rushi Parekh, C.A. Department represented by Shri Vinod Kumar, Sr. DR Appeal instituted on 09/06/2023 Date of hearing 30/11/2023 Date of pronouncement 11/12/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) [in short, the ld. CIT(A)] dated 31/03/2023 for the Assessment Year (AY) 2009-10. The assessee has raised following grounds of appeal: “(1) That CIT(A) erred that as in confirming addition of Rs. 10,60,330/- (2) That CIT(A) erred in not considering opening cash balance accumulated from agricultural income and past savings. (3) That the addition confirmed by CIT(A) of Rs. 10,60,330/- may kindly be deleted. (4) The appellant craves leave to add, amend, alter, vary and/or withdraw any or all the above grounds of appeal.”

2. Perusal of record shows that the impugned order was passed on 31/03/2023, however the present appeal is filed on 09/06/2023, thus, Bhikhubhai Keshavbhai Mistry Vs ITO there is a delay of 6 days in filing appeal before the Tribunal. The assessee has filed application for condonation of delay in filing appeal. The learned Authorised Representative (ld. AR) of the assessee submits that the assessee received order of ld. CIT(A) on 04/04/2023 and he requested his Authorised representative V.I. Rudalal & Company, Chartered Accountants to prefer appeal before the Tribunal as on 05/06/2023 as assessee was busy in treatment of his Cancer disease. The ld. AR of the assessee submits that the delay in filing appeal is neither intentional nor deliberate but for the reasons beyond the control of assessee. The assessee is not going to be benefitted in filing appeal belatedly. The ld. AR of the assessee further submits that by considering the facts that the delay is only of six days, the Bench may adopt a pragmatic approach.

3. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue submits that the Bench may take appropriate decision on the application of condonation of delay.

4. I have considered the contention of both the parties and perused the record carefully. As recorded above, there is delay of only 6 days in filing the present appeal. The ld. AR of the assessee vehemently argued that the delay in filing appeal is neither intentional nor deliberate and that the assessee is suffering from cancer and he was under treatment during that period and not going to be benefitted by filing appeal belatedly.

Bhikhubhai Keshavbhai Mistry Vs ITO Considering the fact that the assessee is diligent in pursuing the appeal and the delay is only of 6 days, and adopting a liberal approach and further keeping in view the principle that when technical consideration is pitted against the cause of substantial justice, the cause of justice must be prevailed. Therefore, the delay of 6 days in filing appeal before the Tribunal is condoned. Now adverting to the merit of the case.

, are that the assessee is an individual. Case of assessee was reopened under Section 147 of the Income Tax Act, 1961 (in short, the Act) that there was cash deposit in the bank account maintained by assessee with ICICI bank of Rs. 30,36,511/- on different dates. The Assessing Officer on recording reasons issued notice under Section 148 of the Act dated 29/03/2016. The Assessing Officer noted that no return of income was filed in response to notice under Section 148 of the Act. The assessee was served various notices for seeking source of credit entry but no response was made. The Assessing Officer issued final show cause notice for proceeding under Section 144 of the Act on 09/12/2016 and asked to explain the source of credit. No response was made. The Assessing Officer on the basis of credit entry, treated the entire credit as an unexplained money under Section 69A of the Act.

6. Aggrieved by the additions in the assessment order, the assessee filed appeal before the ld. CIT(A) challenging the validity of reopening and Bhikhubhai Keshavbhai Mistry Vs ITO addition on merit. The assessee filed various submissions before the ld. CIT(A). The assessee stated that no notice under Section 143(2) of the Act was served upon the assessee, hence the reassessment proceedings itself is invalid. To support such contention, the assessee relied on various case laws. On validity of reopening, the assessee stated that the Assessing Officer reopened the case merely on the basis of information which was not independently verified. There is no nexus of reasons recorded with the belief formed for escapement of income. Reasons recorded was not provided to the assessee. The reopening was made for making fishing and roving enquiry. It was merely reopened on the basis of ITD Portal for credit entry. The Assessing Officer has not applied his mind independently by verifying the bank statement. Bank statement was not called for before issuance of notice under Section 148 of the Act. Entire cash deposit cannot be income of assessee as has been held by the Hon'ble Delhi High Court in the case of CIT Vs. Indo Arab Air Services (2016) 283 CTR 92 (Delhi). The assessee also relied on decision of Delhi Tribunal in Bir Bahadur Singh Sijwali in 68 SOT 197 (Delhi Trib). The assessee also submitted that the reasons recorded has no rational connection with the formation of belief. On merit, the assessee stated that the assessee has consistently withdrawn and redeposited cash in a short time intervals. The case withdrawn were redeposited in ICICI bank, Ankleshwar, copy of which was furnished.

Bhikhubhai Keshavbhai Mistry Vs ITO Copy of Bharuch District Central Cooperative bank was also furnished. The assessee submitted that he is an agriculturist having agricultural land holding with justifiable opening cash balance of Rs. 7,90,680/- as on 01/04/2008. The cash flow statement was also furnished. On the basis of such contention, the assessee prayed to delete the addition and allowed appeal.

Bhikhubhai Keshavbhai Mistry Vs ITO 10. On the other hand, the ld. Sr. DR for the revenue supported the orders of lower authorities. The ld. Sr. DR for the revenue submits that all the submissions of the assessee were duly considered by the ld. CIT(A) while granting substantial relief to the assessee. The assessee is not eligible for further relief.

raised by the assessee is partly allowed.

12. In the result, this appeal of assessee is partly allowed. Order announced in open court on 11th December, 2023.