Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 383/JP/2023
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.
The assessee has marched this appeal on the following 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. That the ld. CIT(A) has erred in law as well in facts of the case in passing ex-party appellate order in orverlooking pending remand proceeding.
3. That the appellant reserves his right to add, amend, alter or withdraw any ground of appeal on or before hearing of this appeal.”
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. 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.
That the delay in filing Form 36 is solely due to the fact that all appellate notices as well as appellate order were served upon the erroneous e-mail and hence passing of order was not in knowledge of the appellant. It is only when the counsel undertaking appeal work, logged into IT portal for verifying the status of pending appeal, the factum of ex-parte order came to knowledge.
The the delay in filing the form 36 is bona fide & unintentional and backed by reasonable cause.
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. 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 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 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.
The fact as culled out from the records is that as per 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 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 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.
Aggrieved from the order of the Assessing Officer, assessee 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 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.
5. In support of the ground number two raised by the assessee 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.
6. On the other hand, the ld. DR did not object to the specific prayer for set aside the assessment.
In the rejoinder the ld. AR of the assessee prayed that it 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.
We have heard the rival contentions and perused the material placed on record. The bench noted that there is typographical error while mentioning the email id while filling the form no. 35. This fact 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 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 { 6. vkns'kkuqlkj@ By order सहायक पंजीकार@Aेेज. त्महपेजतंत