TIRUMALA CONSTRUCTION ,NASHIK vs. ITO, WARD 2(4), , NASHIK

This appeal filed by the assessee is directed against the order dated 29.08.2023 passed by Ld CIT(A)/NFAC for the assessment year 2017-18.

The present appeal is filed belatedly i.e. with the delay of 145 days. The appellant furnished an application along with an affidavit praying for condonation of delay in the circumstances mentioned therein. Ld. Sr. DR could not controvert the averments made in the above affidavit. We are of the considered opinion that the reasons mentioned by the assessee constitute reasonable cause for not filing the appeal within prescribed time. In the circumstances, the delay is hereby condoned and the appeal is admitted for adjudication. 3. The appellant raised the following grounds of appeal :- “1] The learned CIT(A) erred in confirming the addition u/s 69A of Rs. 19,91,000 made by the A.O. in the asst, order passed u/s 144 by treating entire cash deposits allegedly made during demonetization period as unexplained money without providing proper opportunity of being heard to the assessee. 2] The learned CIT(A) failed to appreciate that the actual quantum of cash deposits made during demonetization period was only Rs.l0,91,000 and the source of entire cash deposits was duly explained by the assessee by filing documentary evidences before the A.O. and therefore, the CIT(A) was not justified in dismissing the appeal in limine without passing any speaking order on merits. 3] The learned CIT(A) erred in not appreciating that the assessee had filed an ITR for A.Y. 2017 - 18 in response to notice u/s 142(1) and therefore, the asst, order passed u/s 144 without issuing any notice u/s 143(2) intimating the assessee regarding selection of its ITR for scrutiny, was bad in law. 4] Without prejudice to above grounds, the appellant submits that all the notices issued by the CIT(A) were issued on the email id and not served physically post and the partners of the appellant firm were not aware of the fact that the hearing notices will be served only on email and therefore, they were not in the practice of checking the email id and hence, it is prayed that the matter may be sent back to the file of CIT(A)/ A.O. for fresh adjudication on merits after affording reasonable opportunity of being heard to the assessee. 5] The appellant craves leave to add/ alter/ amend any of the grounds of appeal.”

Being aggrieved by the above action of the Assessing Officer, an appeal was filed before ld. CIT(A)/NFAC. Since assessee LD CIT(A)/NFAC, the appeal was dismissed vide impugned order dated 29-08-2023 confirming the addition made by the Assessing Officer. 6. Being aggrieved by the decision of ld. CIT(A)/NFAC, the appellant assessee is in appeal before this Tribunal. 7. The LD AR submitted before us that the assessee furnished return of income for Asstt Year 2017-18 on 29-03-2018 i.e. after the due date but before the last date for furnishing return of income. It was submitted by LD Counsel of the assessee that earlier the jurisdiction was with some other AO & on 25-10-2019 another AO issued notice u/s 142(1) of the IT Act to explain the source of cash deposit in the banks. In response to the same a detailed written submission along-with copy of return for Asstt Year 2017-18 & other relevant documents such as sale bills etc for carrying out excavation work were submitted before the AO. In the assessment order the AO did not considered the return filed by the assessee & also did not issued any notice u/s 143(2) of the IT Act. Even the documents furnished on 20-11-2019 in response to notice u/s 142(1) of the IT Act were not found satisfactory/concrete evidence to substantiate the source of cash receipts. In response to show cause notice dt. 21-11-2019 it was again clarified that sales invoices are already submitted but the AO did not accepted those sale bills as conclusive proof of cash deposit by treating them as self made vouchers. Under these circumstances it was submitted by the counsel of the assessee that the AO erred in not accepting the explanation of the assessee & further erred in making the addition of Rs.19,91,000/- treating the same as unexplained money u/s 69A of the IT Act. Regarding LD CIT(A)/NFAC’s order it was submitted by LD Counsel of the assessee that all the notices were served through email only & the partners of the firm were not aware of the fact that the hearing notices will be served only on the email & therefore they were not in practice of checking the email & hence could not respond to the notices issued by LD CIT(A)/NFAC. Therefore it was prayed by LD counsel of the assessee that the matter may kindly be sent back to the file of LD CIT(A)/NFAC / the AO for fresh adjudication on merits after affording reasonable opportunity of hearing to the assessee.

The LD DR supported the orders passed by subordinate authorities & requested to confirm the above orders.