KALYAN SAHAI GURJAR,JAIPUR vs. CIT(A), JAIPUR

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

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 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.

“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/-.

3. I have total income Rs. 1,57,506/- form salary only. I did not carry and business in the previous year 2011-12. So income consider from Non Speculative business is not correct. I, appellant pray that I may amend, alter, add or delete all or any of the above grounds of appeal.”

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 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.

“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 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.

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.

7. Per contra, the ld. DR objected that the contention of the 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. 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. purposes.