SEDU RAM MEENA,JAIPUR vs. ITO WARD 6(4), JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 383/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2013-14 cuke Sedu Ram Meena Income Tax Officer, 91 Ashok Pura New Sanganer Vs. Ward 6(4), Jaipur Road, Sodala, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AHAPM 8629 G vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Ashish Khandelwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (Addl. CIT) a lquokbZ dh rkjh[k@ Date of Hearing : 06/09/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 18/09/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal is filed by assessee and is arising out of the order of the National Faceless Appeal Centre, Delhi dated 28/02/2023 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2013-14 which in turn arise from the order dated 28.11.2016 passed under section 147 r.w.s 143(3) of the Income Tax Act, by NeFAC.

2 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO

grounds:-

“1. That the ld. CIT(A) has erred in law as well in facts of the case in sustaining the addition of Rs. 2140463/- without appreciating evidences/information put truth by appellant.

2.1 At the outset of the hearing the bench noted that the registry

pointed out that there is a delay of 47 days. Apropos to this delay in

filling this appeal the assessee submitted as under:

“1. Sedu Ram Meena, the above named assessee-appellant would like to submitthat:- 1. That the assessment for the relevant year was passed by ITO ward 6(4) on 28.11.2016. Subsequently, the appellant preferred appeal before CIT-(Alby filing form 35. 2. That the counsel while filing form 35 inadvertently mentioned incorrect email address in as much, pawandlb@gmail.com was mentioned instead of pawandbh@gmail.com, thereby resulting in service of notices as well as appellate order to erroneous or non existent e-mail address. Even the mobile no. & email ID on ITBA portal was of counsel undertaking return filing, who did not communicate the appellant in this regard. 3. That due to mentioning of erroneous e-mail in form 35, the appeal notices as well as appellate order cannot & could not be served upon the appellant, thereby resulting in no knowledge of ex-parte order by CIT (A) dated 28.02.2023to the appellant. 4. That the appeal against impugned order was statutorily required to be filed before worthy tribunal by 29.04.2023 and therefore there is delay of 40 days in filing form 36 which the appellant requests your honour to condone and allow admission of the appeal.

3 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO

It is therefore, humbly prayed to kindly condone the delay of 40 days in filing Form 36 and allow admission of appeal and oblige.”

2.2. In support of the application so filed the assessee has also

filed an affidavit. The content of the affidavit filed by the assessee

reads as under:

“Affidavit in support of application 1. Sedu Ram Meena, Son of Late Shri Ram Lal Meena, resident of91, Ashok pura new sanganer road, Sodala, Jaipur hereby affirm as under:- 1. That I am assessed to Income tax vide PAN: AHAPM8629G and am the appellant of the case. 2. That the appellate order u/s 250 of the Income tax Act was passed on 28.02.2023 by the worthy CIT (A)-NFAC which was served to non-existent email address in as much the e-mail ID mentioned in Form 35 by the counsel was incorrect. 3. That the appellant is not tech savvy and is not acquaint to email operation and therefore in form 35 e mail ID of the son was mentioned and even in IT portal, email ID as well as mobile number of Counsel undertaking return filing have been updated. 4. That the factum of appeal notices as well as ex-parte appellate order was not in knowledge of the appellant & the matter came to knowledge only when counsel as a routine affair logged on to portal for verifying the status of the pending appeal. 5. That the appeal against impugned order was statutorily required to be filed before worthy tribunal by 29.04.2023 and

4 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO therefore there is delay of 40 days in filing form 36 by the appellate. 6. That the delay in filing appeal in form 36 is bonafide, unintentional & backed by reasonable cause. 7. That I shall remain vigilant in future. Deponent VERIFICATION 1. Sedu Ram Meena, the appellant do hereby declare that what is stated above is true to the best of my information and belief. Deponent”

2.3. During the course of hearing, the ld. DR not objected

to assessee’s application for condonation of delay and

prayed that Court may decide the issue as deem fit in the

interest of justice.

2.4. We have heard the contention of the parties and

perused the materials available on record. The prayer by the

assessee for condonation of delay of 47 days has merit as

there was an error while filling the email id for

communication at the end of the assessee. The mistake was

inadvertent and even the counsel engaged did not

correspond with the assessee. Thus, the service of order

was on erroneous email id and has resulted delay in filling

appeal. Therefore, based on the reasons we concur with the

5 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO submission of the assessee and condone the delay of 47

days in filing the appeal by the assessee in view of the

decision of Hon’ble Supreme Court in the case of Collector,

land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC)

as the assessee is prevented by sufficient cause and

therefore, we condone the delay and admit the appeal to be

decided on its merit.

information brought on record, it was gathered that the assessee,

during the year under consideration, had purchased an agricultural

land situated at Village Badapadampura, Teh. Chaksu Distt. Jaipur

on 09.05.2012 from Smt. Laxmi W/o Gangaram, Sh. Kailash S/o

Sh. Babu Lal and Sh. Ramphool S/o Sh. Gangram for a

consideration of Rs. 20 lacs. The assessee had filed his return of

income on 29.03.2014 declaring total income of Rs. 7,79,840/- for

the year under consideration. Enquire u/s 133(6) was conducted by

the ITO (Intelligence)-1, Jaipur for verification of source of

payment. During such enquiry proceedings, it was noticed that,

against the clearance of cheques issued for purchase of land, cash

amounting to Rs. 12 lacs was deposited in bank account within the

6 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO span of 11/4 month i.e. from 21.05.2012 to 26.06.2012. Further,

stamp duty of Rs. 1,40,463/- was also paid by Sh. Sedu Ram

Meena in cash. The assessee failed to explain the source of

investment in the said property. Thus the assessee had not

disclosed fully and truly all the material and facts necessary for

assessment. Therefore, believing that income to the tune of Rs.

13,40,463 has escaped assessment, the case was reopened by

invoking the provision of section 147/148 of the act. In response to

the notice of section 148 the assessee filed the return on

27.10.2015.

3.1 The assessee has declared income from salary / pension and

income from sale & purchase of land declaring business profit u/s.

44AD of the Act. The assessee has declared salary / pension

income at Rs. 3,75,520/- and business income at Rs. 3,05,488/-

income from other sources at Rs. 1,08,835/- and after clamming

deduction under chapter VIA of the Act the total income was

declared at Rs. 7,79,843/-. In the assessment proceeding the ld.

AO noted that the assessee has purchased land as on 09.05.2012

for total consideration of Rs. 20 lacs and paid Rs. 1,40,463/-

regarding payment of stamp duty. The assessee was asked to

7 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO

explain the source of this investment and in response the assessee

submitted that he has received the money on sale of property and

for that sale as the assessee did not submit any documentary

evidence the ld. AO did not consider the plea of the assessee. The

ld. AO in his order also noted that the assessee has deposited a

further sum of Rs. 11,00,000/- in his bank account. Therefore,

based on the detailed discussion in the assessment order the ld.

AO made the addition of Rs. 21,40,463/- in the income of the

assessee and accordingly the assessment was completed.

preferred an appeal before the ld. CIT(A)/NFAC. A propose to the

grounds so raised the relevant finding of the ld. CIT(A)/NFAC is

reiterated here in below:

“5. Appellate Findings: 5.1 During the course of appellate proceedings, appeal notices were sent to the appellant on 24.12.2020, 08.09.2021, 12.08.2022, 05.12.2022 and 02.02.2023 fixing the case for 31.12.2020, 14.09.2021, 29.08.2022, 13.12.2022 and 13.02.2023 respectively. In this regard, neither appellant sought any adjournment nor filed any reply so far. 5.2 The ground nos. 1, 8 and 9 are general in nature. 5.3 The main ground taken by the appellant is not providing of reasons of re- opening to the assessee, the addition of cash deposited in the bank account no. 0060301000000041 maintained with Malviya Urban Co-operative Bank and the difference amount paid to purchase the

8 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO

property alongwith stamp duty have been made by AO. The appellant further took the ground of non-providing of ample opportunities during the assessment proceedings to explain the source of cash deposit amounting to Rs. 12,00,000/- for purchasing the agricultural land. As mentioned in the assessment order. "the A/R of the assessee, vide order sheet entry dated 27-05 2016, was asked to furnish further information such as copy of agreement as referred above, details of sale made during the year, cash flow for the year details of closing stock etc. However, even after providing sufficient time by AO and adjournment on multiple occasions (03-06 2016, 10-06-2016, 17-06- 2016, 27-06- 2016, 08-07-2016 and 15-07-2016), the assessee did not explain the sources of the funds used for making payment of purchase consideration. 5.4 The appellant has not given any proof or source of cash deposit in the bank account for purchasing the agricultural land or the difference amount as stated in assessment order. During the appellate proceeding even after giving sufficient opportunities as mentioned in para 5.1 above, the appellant has not responded to any of the appeal notices neither submitted any purchase agreement, purchase deed, copy of bank passbook for the relevant period, details of property as contended before AO that the same was sold to finance the purchase, the treatment of the property sold by the assessee in the accounts and income tax return of the assessee for the previous years, sale deed and purchase deed, buyers details and nor the mode of payment through which money was received from the buyer. 5.5 The e-mail address on which the appeal notice has been sent is taken from Form 35 which was given by the appellant himself. 5.6 The Hon'ble Delhi High Court in the case of Saroj Chandna v. Income-tax Officer-[2023] 146 taxmann.com 30 (Delhi) held that: Where Assessing Officer passed reassessment - order making addition on account of an amount received by assessee from a party holding that said transaction had escaped assessment, since assessee elected not to furnish information related to this transaction as required by Assessing Officer in reopening notice, assessee could not contend that he/she was denied opportunity of hearing and, thus, impugned reassessment order was valid -- 5.7 The case of the assessee suffers from both the defects, the first is from lack of submission of necessary documents and secondly from lack of merits.

9 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO 6. In view of the above, the action of the assessing officer is confirmed and the appeal is DISMISSED.”

the ld. AR of the assessee relied upon the affidavit of the assessee

and submitted that since the assessee was not served any notice

on the correct mail id he is deprived off the justice before the ld.

CIT(A) and even the assessee if given a chance he can explain the

source of purchase of property and also the source of cash

deposited into the bank account.

prayer for set aside the assessment.

would be better in the interest of the justice that if the matter be

remanded back to the ld. AO so the assessee can submit the

related evidence to support the contention so raised.

placed on record. The bench noted that there is typographical error

while mentioning the email id while filling the form no. 35. This fact

10 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO is not disputed and that has also resulted in filling this appeal late

by 47 days. The notices so issued by the ld. CIT(A) was not served

and the assessee was thus, deprived from the justice and the order

of the ld. CIT(A) was thus ex-party. Before us the ld. AR appearing

on behalf of the assessee vehemently argued that the based on the

affidavit and fact that there was an error of typing the mail id and

thus the assessee was not able to get justice and file the

submission on merits of the case. The ld. AR based on that fact

argued that if given a chance he will substantiate the source of

purchase of property with the relevant evidence. Thus, based on

this statement at bar the bench feels that there is a force in the

arguments of the ld. AR of the assessee and if given a chance the

assessee can demonstrate the merits of the case. Therefore,

considering that contentions and ongoing through the orders of the

lower authorities we find force in the arguments advanced by the

ld. AR of the assessee. Based on that set of facts, we are of the

considered view that the assessing officer should hear the

assessee’s submission on merits after affording proper opportunity

of being heard and pass speaking order in the matter, therefore,

the matter is set aside to the file of the learned assessing officer

with a direction to hear the merits of the case after affording a

11 ITA No. 383/JP/2023 Sedu Ram Meena vs. ITO reasonable opportunity of being head to the assessee pass an

appropriate order in accordance with the law. At the same time

assessee is directed to represent and present all the facts before

the assessing officer and should not ask for the adjournment on

frivols grounds. At this stage we remand back the issues raised

without commenting upon the merits of the case and the ld. AO is

directed to complete the assessment.

In the result, appeal of the assessee is allowed for statistical

purpose.

Order pronounced in the open Court on 18/09/2023 Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judcial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 18/09/2023 *Ganesh Kumar, PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Sedu Ram Meena, Jaipur izR;FkhZ@ The Respondent- Income Tax Officer, Ward-6(4), Jaipur 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr@ CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 5. xkMZ QkbZy@ Guard File { ITA No. 383/JP/2023} 6. vkns'kkuqlkj@ By order

सहायक पंजीकार@Aेेज. त्महपेजतंत