KIRAN PABUWAL,JAIPUR vs. ITO WARD 6(2), JAIPUR

आयकरअपीलीय अधिकरण] जयपुरन्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR JhlanhixkslkbZ]U;kf;dlnL; ,oaJhjkBksMdeys'kt;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;djvihy la-@ITA No. 176/JP/2022 fu/kZkj.ko"kZ@AssessmentYear :2009-10 Smt. Kiran Pabuwal cuke The ITO Vs. D-3, Ganpati Enclave, Madrampura Ward -6(2) Ajmer Road, Jaipur – 302 006 Jaipur LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAOPP 0471 C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri R.S. Poonia, CA jktLo dh vksj ls@Revenue by: Mrs. Monisha Choudhary, Addl. CIT-DR lquokbZ dh rkjh[k@Date of Hearing : 26/04/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 10/05/2023 vkns'k@ORDER PER: SANDEEP GOSAIN, JM The assessee has filed an appeal against the order of the ld. CIT(A) -2,Jaipur dated 30-09-2021 for the assessment year 2009-10 raising therein following grounds of appeal. ‘’1. That under the facts and in the circumstances of the case the ld. CIT(A) has erred in law and facts in confirming the addition amounting to Rs.10.00 lacs as unexplained payment u/s 69 of the Act, 1961 to the income of the assessee on this count is wrong, unwarranted and bad in law. Kindly delete the addition.

2 ITA NO. 176/JP/2022 SMT. KIRAN PABUWAL VS ITO, WARD 6(2), JAIPUR 2. That under the facts and in the circumstances of the case, the ld. CIT(A) has erred in law and facts in confirming the addition amounting to Rs.1.20 lacs as incoe from other sources u/s 57 of the Act, 1961 to the income of the assessee on this count is wrong, unwarranted and bad in law. Kindly delete the addition. 3. That under the facts and circumstances of the case the ld. CIT(A) has erred in confirming the interest u/s 234A and 234B of the Act, 1961 is wrong, unwarranted and bad in law. Kindly delete the same.

2.1 At the outset of the hearing, the Bench observed that there is delay of 122 days in filing the appeal by the assessee for which the ld. AR of the assessee filed a condonation application dated 25-05-2022 praying therein as under:- ‘’1. This present appeal is filed vide dated 9-05-2022 against the order passed by ld. CIT(A)-2, Jaipur vide order dated 30- 09-2019 which is received by the assessee on 8-11-2022 with a delay of 122 days. 2. Further, it is submitted that as per the order passed by Hon’ble Supreme Court in Miscellaneous Application No. 21 of 2022 vide order dated 10-01-2022 directed that ‘’the period from 15-03-2020 till 28-02-2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial and quasi-judicial proceedings. It is further clarified that the period from 15-03-2020 till 28-02-2022 shall also stand excluded in computing the periods prescribed under section 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of Negotiable Instruments Act, 1881 and any other laws, which prescribe period (s) of limitation for instituting proceedings, other limits

3 ITA NO. 176/JP/2022 SMT. KIRAN PABUWAL VS ITO, WARD 6(2), JAIPUR (within which the Court or Tribunal can condone delay) and termination of proceedings’’. As per this said order the period from 15-03-2020 till 28-02- 2022 shall exclude for the purposes of limitation. A copy of order passed by Hon’ble Supreme Court vide dated 10-01-2022 is placed on record for ready reference. In view of the above submission, the ld. AR requested to condone the delay and admit the appeal.’’

Thus, the ld. AR of the assessee took the resort of Hon’ble Supreme Court dated 10-01-2022 (M.A. No. 21 and 665/2021 regarding cognization of extension limitation from 15-03-2020 till 28-02-2022) and prayed that the assessee is prevented by sufficient reasons in filing the appeal within due date and further prayed to condone the delay. 2.2 On the other hand, the ld. DR objected to such delay but left the matter on the Bench to consider it as deem fit and proper in the case. 2.3 We have heard both the parties and perused the materials available on record. The Bench has taken into consideration the order of Hon’ble Apex Court as to the condonation of delay due to outbreak of Covid-19 pandemic vide its decision dated 10-01-2022 in Misc. Application No. 21 of 2022, 665 of 2021 and Suo Motu Writ Petition© No. 3 of 2020 wherein it has been mentioned at Para III by the Hon’ble Supreme Court.

4 ITA NO. 176/JP/2022 SMT. KIRAN PABUWAL VS ITO, WARD 6(2), JAIPUR ‘’III. In cases the limitation would have expired during the period between 15-03-2020 till 28-02-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01-03-2022. In the event of actual balance period of limitation remaining, with effect from 01-03- 2022 is greater than 90 days, that longer period shall apply.’’

Thus we find that there is nationwide Covid 19 Pandemic situation which is beyond the control of the human being and the assessee is prevented by sufficient cause in not filing the appeal in time. The Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji, 167 ITR 471 observed as under:-

‘’The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression " sufficient cause " in section 5 is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose of the existence of the institution of courts. A justifiably liberal approach has to be adopted on principle. "Every day's delay must be explained" does not imply a pedantic approach. The doctrine must be applied in a rational, common sense and pragmatic manner. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an evenhanded manner. There is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay. "When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay."

Keeping in view the present facts and circumstances of the case and the Orders of the Hon’ble Supreme Court (supra), the application of the assessee for condonation of delay in filing the appeal is allowed.

5 ITA NO. 176/JP/2022 SMT. KIRAN PABUWAL VS ITO, WARD 6(2), JAIPUR 3.1 Brief facts of the case are that as per AIR information, the assessee had invested Rs.32,15,030/- in acquiring mutual funds. It is also observed that as per ITS details generated from system, the assessee had paid Rs.32,15,030/- against mutual fund during the assessment year 2009-10 but no return as per system had been filed by the assessee for verification of the transaction. Hence, according to the AO , there were sufficient reasons to believe that an amount of Rs.32,15,030/- had escaped assessment within the meaning of Section 147 of the I.T. Act, 1961. Accordingly, a notice u/s 148 dated 01-03-2016b was issued to serve upon the assessee by speed post by the then AO but the notice returned unserved and the unserved notice was got served through the mode of affixture on 15-03-2016 through Ward Inspector by ITO, Ward 6(2), Jaipur. In compliance to notice u/s 148, the assessee had not filed the return. It is also observed that account statement of mutual funds alongwith common application form and KYC details of the Folio No. 1014537317 were called for from M/s. Birla Sun Life and a new address was noticed from the account statement. Therefore, notice cum show cause u/s 147/144 was issued on 5/07-10-2016 and was sent by speed post on the new address of the assessee. In response to the show cause notice, none attended the hearing nor submission was filed but the AO had no option except to complete the assessment u/s 144 of the Act on the basis of the material available on record. No submission or evidence had been received by the AO in response to show cause notice from

6 ITA NO. 176/JP/2022 SMT. KIRAN PABUWAL VS ITO, WARD 6(2), JAIPUR the assessee. Hence, the AO completed assessment ex-parte and made addition of Rs.10.00 lacs being unexplained expenditure or investment u/s 69 of the Act and addition of Rs.1.20 lacs as income from other sources. 3.2 Being aggrieved, the assessee carried the matter before the ld. CIT(A) who confirmed the addition made by the AO by observing as under:- ‘’2.2 I have perused the facts of the case and the assessment order. In this case, the ample numbers of opportunities given to the appellant are tabulated below:- Date of hearing fixed Remarks 20-11-2017 None Attended 21-05-2019 None Attended 10-06-2019 None Attended 15-07-2019 None Attended 21-08-2019 None Attended 20-09-2019 Letter sent to Assessing Officer for service of hearing notice. Notice served through mail by the Assessing Officer but none attended nor any details were filed 2.2.1 In view of the above, it is clear that the appellant and the authorized representative are not interested in contesting the appeal and in spite of sufficient opportunity and the time have not submitted any detail whatsoever. On merits, it seems that assessee has nothing to say in support of grounds of appeal taken. After careful consideration of the order, I find that Assessing Officer has rightly made the addition, hence ground of appeal is dismissed. 3. In the result, the appeal is dismissed.’’

7 ITA NO. 176/JP/2022 SMT. KIRAN PABUWAL VS ITO, WARD 6(2), JAIPUR 3.3 During the course of hearing, the ld. AR of the assessee prayed that the ld. CIT(A) has passed the ex-parte order and the assesseee was not provided adequate opportunity of being heard. Thus the assessee may be provided one more opportunity to advance her arguments/ submissions before the AO in the interest of equity and justice. 3.3 On the other hand, the ld. DR supported the orders of the lower authorities praying that the assessee was provided various opportunities by the lower authorities to argue the case but the assessee was lethargic and unserious to pursue her case and thus the order passed by the ld. CIT(A) should be sustained. 3.4 We have heard both the parties and perused the materials available on record. The Bench observed that the assessee was really lethargic and unserious in pursuing her case in spite of providing various opportunities by the ld. CIT(A) and the AO as mentioned in their orders. It is undisputed fact that the assessee was granted several authorities either by the ld. CIT(A) or by the AO to argue the case but the assessee remained non-cooperative and negligent in pursuing her case on the dates of hearing of the appeal for which the Bench awards cost of Rs.5,000/- and the same may be deposited in the Prime Minister Relief Fund and copy of the same shall be submitted to the AO for proof and thus the appeal of the assessee is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous

8 ITA NO. 176/JP/2022 SMT. KIRAN PABUWAL VS ITO, WARD 6(2), JAIPUR ground and remain cooperative during the course of assessment proceedings before the AO. Thus the appeal of the assessee is allowed for statistical purposes. 3.5 Before parting, we may make it clear that our decision to restore the matter back to the file of the A.O. shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by A.O. independently in accordance with law. 4.0 In the result, the appeal of the assesee is allowed for statistical purposes. Order pronounced in the open court on 10/05/2023. Sd/- Sd/- ¼jkBksMdeys'kt;UrHkkbZ ½ ¼lanhi xkslkbZ½ (Rathod Kamlesh Jayantbhai) (Sandeep Gosain) ys[kklnL;@Accountant Member U;kf;dlnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 10 /05/2023 *Mishra आदेश की प्रतिलिपिअग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Smt. Kiran Pabuwal, Jaipur 2. izR;FkhZ@ The Respondent- The ITO, Ward 6(2), Jaipur 3. vk;djvk;qDr@ The ld CIT 5. विभागीय प्रतिनिधि] आयकरअपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZQkbZy@ Guard File (ITA No.176/JP/2022) vkns'kkuqlkj@ By order, सहायकपंजीकार@Aेेजज. त्महपेजतंत