KALYAN SAHAI GURJAR,JAIPUR vs. CIT(A), 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. 195/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2011-12 cuke Kalyan Sahai Gurjar CIT(A) S/o Surja Ram Gurjar Bhojera, Vs. Jaipur Virat Nagar, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ALMPG 1989 M vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Mahendra Prajapat (C.A.) jktLo dh vksj ls@ Revenue by : Smt Monisha Choudhary (Addl. CIT) a lquokbZ dh rkjh[k@ Date of Hearing : 16/05/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 23/05/2023 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 31/01/2023 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2011-12 which in turn arise from the order dated 12.12.2018 passed under section 147 r.w.s. 144 of the Income Tax Act, by ITO, Ward-5(3), Jaipur.

2 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT

the assessee relied upon the petition for condonation of delay as

reproduced here in below:

“Subject-Regarding defective in Appeal to ITAT, Jaipur Benches. Respected Sir, I would like to bring your kind notice that we have filed the appeal to ITAT vide Appeal No. ITA 195/JPR/2023. Later on, dated 11-04-2023 we received an email reading defect in the appeal. There were two defects in the appeal according to the email received namely - 1. Appeal is time-barred by 2 days 2. Respondent's Personal Information column is wrongly filled and/or incomplete. Appeal is time-barred by 2 days - A. Delay in Delivering of Appeal Document We have filled the appeal on dated 30-03-2023 at E-Filling Portal. We have post the Physical Documents of the Appeal on Dated 30-03-2022. The Post was derived on dated 03-04-2023 as per tracking record of the post. Last date of submitting physical documents was 01-04-2023. We have Post the physical documents on dated 30-03- 2022. Delay in delivering the physical document was on the part of service Provider. So please admit the Appeal and condone the delay in filling of appeal. B. Technical Issue at Portal – I faced technical glitch while filling the appeal. While filling the appeal one time password was not delivered or delay in delivering was occurred. So, we were late on filling the appeal. Further when after login we were not able to see drafted or saved Form-36. Considering the above reason please condone the delay of filling of appeal. We have filled appeal electronically on dated 30-03-2023. There was delay in delivering of physical document at your office. If appeal not admit, it will be prejudice to me. Respondent's Personal Information column is wrongly filled and/or incomplete.

Name and Designation of the Respondent Savita Bundas CIT (Appeals)-Jaipur-2

PAN Not Available TAN Not Available Complete Address for sending notice NCR Building, Bhagwan Dass Road, C- Scheme, Ashok Nagar, Statue Circle, Jaipur, Rajasthan 302005

State Rajasthan

3 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT

Pin code 302005 Phone No 9969233940 Email Adress jaipur.cit2.appeal.unit@incometax.gov.in. jaipur.cit1.appeal.unit@incometax.gov.in jaipur.cit3.appeal.unit@incometax.gov.in

In the order of CIT(Appeal), address of the authority who passed the order is not mentioned. At the filling of appeal, we have left blank address, Phone No and Email Address of the respondent. The above details have been taken form the document issued by CBDT. We have attached the relevant page of the document. These details are no where mentioned at the CIT Appeal Order passed. So, looking to the facts above, we request you to please rectify the above defect in the ITAT Appeal.”

Based on the above contention the ld. AR of the assessee prayed

to take a lenient view of the matter.

2.1 Per contra, the ld. DR representing the revenue did not raised

any objections to the contentions raised by the assessee and left

the decision to the bench.

2.2 We have heard both the parties and have considered the

content of the application for condonation of delay as well as the

arguments of the ld. DR on the issue. Based on the materials

available on record the bench noted that the assessee prayed for

condonation of delay of 2 days. The reasons placed on record has

merit and we concur with the submission of the assessee. Thus the

4 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT delay of 2 days in filing the appeal by the assessee is condoned in

view of the decision of the apex court decision in case of Collector,

Land Acquisition vs MST Katiji, wherein the Hon'ble Supreme

Court has held that the expression 'Sufficient Cause' employed by

the legislature is adequately elastic to enable the Courts to apply

the law in a meaningful manner to sub-serves the ends of justice

that being the life-purpose of the existence of the institution of

Courts. It was also held by the Hon'ble Supreme Court that there is

no presumption that delay is occasioned deliberately, or on account

of culpable negligence, or on account of male fides. A litigant does

not stand to benefit by resorting to delay. In fact, he runs a serious

risk. In the instant case, applying the same principles, we find that

the assessee has all along acted diligently in safeguarding their

legal rights and availing the remedies available to him and has

acted and taken action but has sufficient reasons so as to bring this

appeal. Considering the facts of the case and considering the

interest of justice the delay of 2 days in bringing this appeal is

condoned and the appeal is hereby admitted for adjudication on

merits.

5 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT

mention that the assessee has marched this appeal on the

following grounds:-

“1. Source of cash deposit was the proceeds of selling buffalos and calf thereof, money accumulated out of household expenses by my wife, saving from my salary income and agriculture income. That time I was also engaged in the growing and selling vegetables food grains. Buffalos was rearing by us for the requirement of my family. Hence it does not constitute business income. Selling of buffalos does not attract capital gain due to personal use for my family. Hence Rs. 4,50,000/- is not income chargeable to tax. Assessing Officer is not justified by addition of income of Rs. 4,50,000/-.

detail available with the Department, it was found that the assessee

had deposited cash of Rs. 4,50,000/- in his saving bank a/c

maintained with Jaipur Thar Gramin Bank, Virat Nagar, Jaipur. The

assessee has also received the income under the head salary. The

assessee has not filed his return of income for the year under

6 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT consideration. The taxability of the above transactions could not be

verified/ascertained. Thus, these transactions remained unverified.

Therefore, after recording the valid reasons in writing to the

satisfaction and belief of the Assessing Officer that the assessee’s

income to the extent of Rs. 4,69,949/- chargeable to tax has

escaped assessment and after obtaining approval u/s 151(1) from

the Pr. Commissioner of Income Tax-02, Jaipur, the case of the

assessee was re-opened by issue of notice u/s 148 on 27.03.2018.

Notice u/s 148 was issued on 27.03.2018 and served to the

assessee by speed post. Notice u/s 142(1) was issued on

27.08.2018 & 12.09.2018. Further, notice u/s 142(1) was issued on

14.07.2018 and served by speed post, requiring to furnish return of

income in compliance to notice issued on 27.03.2018 u/s 148 of the

I.T. Act. No return of income has been filed in response to notice

issued u/s 148 and no information has been furnished in response

to notice u/s 142(1) of the I.T. Act. Since, no compliance was made

by the assessee, a final show cause notice u/s. 144 dated

20.11.2018 was issued to the assessee and served to the

assessee by mail ID as well as speed post. No reply of the show

cause letter filed by the assessee. As in the year under

consideration the assessee has deposited cash of an amount of

7 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT

Rs. 4,50,000/- in his bank account maintained with Jaipur Thar

Gramin Bank and salary income of Rs. 19,949/- was added by the

AO.

assessee has preferred an appeal before the ld. CIT(A). A propose

to the grounds so raised the finding of the ld. CIT(A) is as under :

“3.1 Ground no. 1: This ground is related to the cash deposits of Rs.4,50,000/- in the bank accounts of the appellant. It was held in the Assessment Order under consideration that the assessee has deposited cash amount of Rs. 4,50,000/- in his bank account maintained with Jaipur Thar Gramin Bank. It is further held by the AO that despite various opportunities of being heard provided to the appellant during the assessment proceedings, he failed to provide any response, consequent to which, the addition of the said amount of Rs.4,50,000/- was made to the income of the appellant.

3.2 In its ground of appeal, the appellant has submitted that the source of the cash deposits were sale proceeds from the sale of buffalos and calf, money accumulated out of household expenses, and savings from salary and agriculture income. It has also submitted that selling of buffalos does not attract capital gain due to personal use for his family. However, no documentary evidence to corroborate its claim has been provided by the appellant.

3.3 Notices u/s 250 of the Act were issued to the appellant during the appellate proceedings to provide it opportunities to furnish relevant documentary evidence in support of its grounds of appeal. However, no response has been furnished by the appellant. The claim of the appellant regarding the source of the cash deposits could not be verified at the appellate stage.

4.1 Ground no. 2: It was held in the Assessment Order under consideration that the assessee had received a salary income of Rs.19,949/-. The appellant in its grounds of appeal has submitted that his

8 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT

taxable salary income was Rs.1,57,506/- after deduction u/s 80C of the Act and HRA exemption. It has also stated that a TDS of Rs. 2,439/- had also been deducted on the said salary income.

4.2 Notices u/s 250 of the Act were issued to the appellant during the appellate proceedings to provide it opportunities to furnish relevant documentary evidence in support of its grounds of appeal. However, no response has been furnished by the appellant. The appellant has failed to provide any documentary evidence in support of the said salary income, in absence of which, the claim of the appellant could not be verified at the appellate stage.

5.1 Hon'ble Supreme Court in the case of B.N. Bhattacharjee & other 118 ITR 461 [SC] held that the appeal does not mean merely filling of the appeal but effectively pursuing the same.

5.2 The aforesaid circumstances show that the appellant is not interested in pursuing its appeal. The maxim 'vigilantibus non-dormientibus jura subvenunt' i.e.. the law assists those who are vigilant and not those who sleep over their rights, is applicable in this case..

5.3 It is settled law that where the assessee fails to discharge the onus by producing cogent evidence and explanation, the AO would be justified in making the additions back into the income of the assessee as held in Kale Khan Mohammad Hanif v CIT [1963] 50 ITR 1 (SC) and Roshan Di Hatti v. CIT [1977] 107 ITR 938 (SC). This onus on the taxpayer has neither been discharged at the assessment stage nor at the appellate stage.

5.4 Therefore, in view of the above, the grounds no. 1 & 2 of appellant are dismissed.

9 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT 6. As the assessee not satisfied with the finding of the ld.

CIT(A), has preferred this second appeal before the tribunal on the

grounds as reiterated here in above. In support of the appeal the

ld. AR of the assessee fairly admitted that though the salary

income of the assessee is much more then what is assessed he

has contended this fact were placed before the ld. CIT(A) but there

is no clear finding of the ld. CIT(A) as to chargeability of salary

income and as regards the cash deposit also assessee was not

given fair chance to represent the case and finding is also not clear

even though there is submission made by the assessee. Therefore,

he prayed that he may be given a chance to represent his case

before the ld. AO.

assessee cannot be entertained at this stage as the assessee did

not appear and file the details before the ld. CIT(A) even the

assessee has not come with the clean hand that her income from

the salary is not taxed correctly. But considering the aspect that

that there is no clear finding of ld. CIT(A) about the chargeability of

salary income and cash deposit the matter may be restore to the

file of the assessing officer.

10 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT 8. We have heard the rival contentions and perused the material

placed on record. It is not in dispute that the assessee is a teacher

having regular income under the head salary. The assessee also

contended before lower authorities that the proceed deposited into

bank account on the account of sale of buffalos has not been

considered as the appeal of the assessee decided without giving

proper opportunity to the assessee. We have also perused the

record and find that while assessing the income of the assessee,

the income determined under head salary is also not correct.

Based these observations, the Bench is of the view that the

contentions raised by the assessee for deposit of cash into bank

account be verified by the AO and at the same time the correct

income to be taxed under the head salary after considering

deductions/exemptions claimed by the assessee and finally

determined the taxable income of the assessee after giving proper

opportunity of being heard to the assessee and at the same time

assessee is also directed to comply the notices and provide the

details as may be called for. Considering these facts and

circumstances of the case, we set aside the issue to the file of the

Assessing Officer to be decided on the merits of the case.

11 ITA No. 195/JP/2023 Kalyan Sahai Gurjar vs. CIT In the result, appeal of the assessee is allowed for statistical

purposes.

Order pronounced in the open Court on 23/05/2023 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;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 23/05/2023 *Ganesh Kr. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Kalyan Sahai Gurjar, Jaipur 2. izR;FkhZ@ The Respondent- CIT(A), Jaipur 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 5. xkMZ QkbZy@ Guard File { ITA No. 195/JP/2023} 6. vkns'kkuqlkj@ By order सहायक पंजीकार@Aेेज. त्महपेजतंत