SHRI NITIN NANDLAL SHRISHRIMAL,DHULE vs. ASSISTANT COMMISSIONER OF INCOME TAX, DHULE, CIRCLE, DHULE

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI R. K. PANDA, VICE PRESIDENT AND SHRI VINAY BHAMORE, JUDICIAL MEMBER आयकर अपील सं. / ITA No.1366/PUN/2023 िनधा�रण वष� / Assessment Year: 2017-18 Shri Nitin Nandlal Vs. ACIT, Dhule Circle, Shrishrimal, Dhule. 1269, Agra Road, Near Gandhi Statute, Dhule- 424001. PAN : AZVPS8225M Appellant Respondent Assessee by : Shri Naimish Dixit Revenue by : Shri Ramnath P. Murkunde Date of hearing : 18.04.2024 Date of pronouncement : 07.05.2024 आदेश / ORDER PER VINAY BHAMORE, JM: This appeal filed by the assessee is directed against the order dated 27.09.2023 passed by LD CIT(A)Pune - 11, for the assessment year 2017-18. 2. The present appeal is filed belatedly i.e. with the delay of 15 days. The appellant furnished an application 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

2 ITA No.1366/PUN/2023 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 has raised the following grounds of appeal :- “1. The learned CIT-(A) erred in holding that the business income of Rs.14,80,080 offered by the assessee in the course of the survey proceedings u/s 133A was assessable to tax as unexplained income taxable as per the provisions of section 115BBE of the Act, without appreciating that the said income was rightly offered to tax in the ITR filed for A.Y.2017 - 18 under the head ‘business income’ and hence, the returned income ought to have been accepted. 2. The CIT-(A) failed to appreciate that the impugned turnover of Rs.1,85,01,034 were duly declared by the assessee at the time of survey and subsequent to declaration given towards such turnover, the profit of Rs.14,80,080 embedded in such turnover was rightly offered to tax as a business income and therefore, there is no reason to treat the same ‘Income from Other Source’. 3. The CIT-(A) ought to have appreciated that the assessee’s sole source of income for past many year has been the business of garments and no evidence had been found during survey indicating any other source of income or excess stock pertains to business other than garment business and hence, application of provisions of section 115BBE merely on the basis of surmise and suspicion may treated as bad in law. 4. The appellant craves leave to add/ alter/ amend any of the grounds of appeal.” 4. Briefly, the facts of the case are that the appellant assessee is an individual & furnished his return of income declaring total income of Rs.14,80,080/- u/s 44AD of the IT Act disclosing net profit @ 8% of the turnover after a survey u/s 133A was conducted

3 ITA No.1366/PUN/2023 in his business premises on 27-09-2019. The case of the assessee was selected for scrutiny under CASS. The AO accepted the returned income without making any addition but while calculating income tax, section 115BBE of the Act was applied. 5. Being aggrieved, an appeal was filed with a delay of 35 days before ld. CIT(A). Learned CIT(A) dismissed the appeal of the assessee in limine without condoning the delay of 35 days. The relevant portion of the CIT(A)’s order is reproduced as under :- “4. Thus, it is a well settled law that the delay however little it is, cannot be condoned in a routine manner and should be condoned only when it is for bonafide reasons and for sufficient cause. In the present case, the appellant has stated that after receiving the assessment order, his regular tax consultant expressed his inability to handle the faceless appeal matter and suggested to contact a senior consultant. The said explanation cannot be considered as bonafide because it is factually incorrect. In this case, the impugned assessment order was passed on 02/12/2019 and at that time, the government did not introduce Faceless Appeal Scheme. The Faceless Appeal Scheme was announced only in the month of August, 2020. Before this announcement, all appeals under Income Tax Act were being dealt in a traditional manner. Since, there was no Faceless Appeal Scheme at the time of passing of impugned assessment order, no tax consultant could have said that he is unable to handle faceless appeals. Thus, the explanation for delay in filing the appeal as given by the appellant is factually incorrect.” 6. Being aggrieved by the decision of LD CIT(A) Pune-11 the appellant is in appeal before us. 7. The LD AR submitted that LD CIT(A) erred in not condoning the delay of 35 days in filing of this appeal. It was

4 ITA No.1366/PUN/2023 further submitted that LD CIT(A) was not correct in observing that E filing scheme was introduced from August 2020. In fact the E filing of first appeal was made mandatory from June 2016 & the regular counsel based in Dhule was not aware with E filing of appeal/ Technology & therefore he advised the assessee to appoint another counsel to file this appeal. The assessee then appointed a counsel from Jalgaon to file this appeal & during the process of supplying all the relevant information & documents called for by the new counsel, who is situated 100 kilometers away from Dhule, this delay of 35 days has occurred. Therefore, there was no intentional delay in filing of this appeal. Under these circumstances LD AR requested the Bench to direct LD CIT(A) to condone the delay of 35 days in filing this appeal & admit the appeal for adjudication on merits. 8. The DR on the other hand relied on the order passed by LD CIT(A). 9. We have heard counsels from both the sides & perused the material available on record. The solitary issue that arises for our consideration is whether ld. CIT(A) was justified in dismissing the appeal in limine without condoning the delay. We find from the

5 ITA No.1366/PUN/2023 record that LD CIT(A) did not accept the contention of the assessee for the only reason that the Faceless appeal scheme was launched in the August 2020 & therefore in the year 2019 when the appeal was required to be filed no counsel could have said that he is unable to handle faceless appeal. The appellant had offered an explanation before ld. CIT(A) that the delay had occurred due to the reason that the original counsel was not well versed with E filing procedure & a new counsel was appointed for filing this appeal. Learned CIT(A)-Pune-11 got confused between E filing of appeals & faceless scheme of hearing of appeals. E filing of appeals was made mandatory from June 2016 & Faceless appeal hearing scheme was made operative from August 2020. Certainly the appellant was required to file his appeal in E filing mode only, which was prevailing during 2019 also & therefore we find force in his argument that the original counsel expressed his inability to file E appeal & suggested to appoint another counsel well versed with technology. In the circumstances, we are of the considered opinion that ld. CIT(A) ought to have condoned the delay of 35 days and adjudicated the issues in appeal on merits. In the light of this fact, we set-aside the order of ld. CIT(A) and remand the

6 ITA No.1366/PUN/2023 matter back to the file of ld. CIT(A) to adjudicate the issue in appeal on merits in accordance with law after affording reasonable opportunity of being heard to the appellant. 10. In the result, the appeal filed by the assessee stands allowed for statistical purposes. Order pronounced in the open Court on 07th day of May, 2024. Sd/- Sd/- (R. K. PANDA) (VINAY BHAMORE) VICE PRESIDENT JUDICIAL MEMBER पुणे / Pune; �दनांक / Dated : 07th MAY, 2024. Sujeet आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(A)-11, Pune. 4. The Pr. CIT (Central), Pune. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “A” ब�च, 5. पुणे / DR, ITAT, “A” Bench, Pune. गाड� फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.