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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 420/JP/2022
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 420/JP/2022 fu/kZkj.k o"kZ@Assessment Years : 2017-18 cuke Babli Income Tax Officer Vs. Shri Vijay Pal, Ward-Bhiwadi Brampuri, Tijara, Alwar LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BHQPB 3714 A vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Vedant Agarwal (Adv.) jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 20/04/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 03/05/2023 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 27/09/2022 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2017-18 which in turn arise from the order dated 06.12.2019 passed under section 143(3) of the Income Tax Act, by ITO, Ward- Bhiwadi [ here in after referred to as ld. AO]
In this appeal, the assessee has raised following grounds: -
2 ITA No. 420/JP/2022 Babli vs. ITO “1. On the facts and circumstances of the case Ld. Lower Authorities grossly erred in making and confirming addition of Rs. 6,60,000/- under section 69A of the Act. 2. On the facts and circumstances of the case and in law also Ld. AO grossly erred in invoking the provision of section 115BBE of the Act.”
At the out set of the hearing of the appeal it is noted the appeal filed
is delayed by 3 days. The ld. AR of the assessee relied upon the petition
for condonation of delay as reproduced here in below:
“Sub: Application for condonation of delay in filing of appeal no ITA 420/JPR/2022 in the case of Smt Babli, Alwar. May it please your honours:-
That the registry has pointed out 3 days of delay in filing of this Income Tax Appeal. 2. That in the pertinent case, the CIT(A) order was passed on 27-09- 2022,however , the said order was only communicated to the assessee on 28- 09-2022. 3. That the said appeal was filed before this Hon’ble Tribunal on 30.11.2022. 4. That, from the aforesaid facts it is clear that there is a delay of 3 days in filing of this appeal. However, the client has paid the appeal fees on 25-11-2022. 5. That the assessee resides in Tijara, Alwar and due to the condition of physical filing, it took some time for the assessee to send signed documents to the representative. Prayer That since there is a delay of mere 3 days and the appeal fees has been paid within limitation, in the interest of principles of natural justice, it is humbly prayed that delay of mere of 3 days may kindly be condoned.”
3.1 The ld. AR of the assessee appearing in this appeal submitted that
the assessee is serious on the duties and therefore, he has paid the appeal
fees in time merely 3 days delay is on account of the technical dealy and
3 ITA No. 420/JP/2022 Babli vs. ITO considering the various judicial precedent where in the courts has
considered ignored technicality of the reasons and has considered the
delay. Even the apex court in the case of Collector, Land & Acquisition Vs.
Mst. Katiji & Others 167 ITR 471(SC) directed the other courts to consider
the liber approach in deciding the petition for condonation.
3.2 On the other hand ld. DR representing the revenue has left the
decision on the merits of the condonation and has not objected to the same.
3.3 Respectfully following the said finding of the apex court and settled
principles as laid down by the apex court as well as other courts and
considering the facts of the present case, we find that the assessee has
explained sufficient cause of delay. Therefore, in the facts and
circumstances of the case, we condone the delay in filling the appeal by the
assessee
Succinctly, the fact as culled out from the records is that e-return was
filed by assessee on 29.08.2017, declaring income of Rs. 2,53,200/-.
During the course of e-assessment proceedings, assessee filed a copy of
ITR along with copy of computation and its annexures. The case was
4 ITA No. 420/JP/2022 Babli vs. ITO selected under limited scrutiny through CASS and accordingly, a notice u/s
143(2) dated 24.09.2018 was issued, which stands duly served upon the
assessee electronically. Subsequent, notices u/s 142(1) dated 03.10.2018
& 22.11.2019 were issued to assessee requiring to furnish certain
details/documents. The case was received on transfer from the ITO, Ward
1(1), Alwar. In response to the notices, the assessee furnished requisite
details/documents, which have been examined by ld. AO on test check
basis & based on that he has made addition of Rs. 11,60,000/-.
Feeling dissatisfied the assessee preferred an appeal before the ld.
CIT(A). Apropos to the grounds the raised by the assessee, the relevant
finding of the ld. CIT(A) is reiterated here in below:
“6. The effective Ground of Appeal is against addition of Rs. 11,60,000/- u/s 69A r.w.s 115BBE on account of unexplained cash deposit during the demonetization period. As per Appellant the source of the deposit is out of opening cash balance of Rs. 12,32,379/-. AO did not accept the contention stating that no corroborative evidence was filed. Further no documentary evidence with respect to keeping the cash for opening Dairy Farm could be filed and Appellant has not maintained books of account. The Appellant has stated that she was not required to maintain books of account as per Section 44AA of the Act. Filed Copy of statement of affairs from F.Y 2006-07 to 2016-17. The opening balance as on 01.04.2016 is Rs. 12,32,579/-. It was also stated that the ITR Form applicable for the Appellant is ITR 2 in which there is no field to fill the figure of cash balance. The Appellant has declare taxable income of Rs. 2,53,200/- in the year under consideration and same may be even lower in earlier A.Yrs. In view of the status of income declared by the Appellant the amount of cash balance shown by the Appellant seems to be on higher side. Further no evidence has been filed about source of cash receipt, neither Appellant has made any substantial cash withdrawals. In new of these fact it will be reasonable to give allowance of Rs. 5,00,000/- for the old capital and past
5 ITA No. 420/JP/2022 Babli vs. ITO savings. Accordingly the addition is restricted to Rs. 6,60,000/-. The Ground of Appeal is Parly Allowed.”
As the assessee not fully satisfied with the finding of the ld. CIT(A)
the assessee has preferred this appeal on the grounds raised as stated in
para 2 above.
In addition the ld. AR of the assessee also filed a petition for seeking
permission to take the additional documents/evidences. The said petition is
reproduced as under :
“Sub: Application for taking additional documents on record under rule 29 of ITAT Rules in appeal no ITA 420/JPR/2022 May it please your honours:-
That aforementioned appeal was listed before this Hon’ble Tribunal for hearing on 20-04-2023. 2. That during the course of arguments, the Hon’ble Tribunal was of the view that the Second Paper Book that has been filed by the assessee on 31.03.2023 is not in a proper format. In this regard, it is humbly submitted that due to bonafide inadvertent error, the said paper book could not be filed in a proper format. Thus, the aseessee may not be made to suffer for this bonafide inadvertent error. 3. That , however the Hon’ble Tribunal was pleased to grant indulgence to the Assessee’s Representative to file the additional evidence as per the format. 4. That the said evidence i.e, Assessee’s Bank pass book, Assessee’s Father pass book, and Gift Deed written by Assessee’s father in favour of the assessee are important documents pertinent for judicious consideration and proper adjudication of assessee’s appeal and they go to the root of the matter. 5. Moreover, these documents are only supplementary documents to prove that the assessee was having necessary cash balance in hand at the time of depositing the same. The aforesaid documents only authenticate the documents that were filed by the assessee before the lower authorities.
6 ITA No. 420/JP/2022 Babli vs. ITO 6. That since these documents are mere supplementary evidence and go to the root of the matter, it is humbly prayed that these documents may kindly be taken on record and this Hon’ble Tribunal may be pleased to take these documents into consideration while adjudicating the instant matter. 7. That the assessee has got a bonafide case and if this indulgence is not granted , the assessee may suffer irreparable loss. Thus in the interest of justice the present application may kindly be allowed and matter may be heard for consideration and adjudication on the basis of the present documents, if the Hon’ble Bench deems fit.”
The ld. AR of the assessee relying on the additional evidence
submitted that the ld. CIT(A) has not properly appreciated the source of the
source and therefore, in the interest of justice the additional evidence may
be considered. He has submitted that the ld. CIT(A) based on the evidence
should have granted the complete relief instead of part. The ld. AR of the
assessee further submitted that only issue in this appeal is of Rs. 6,60,000/-
sustained on account of cash deposited during the demonetization period.
The assessee stated the fact that she is having sufficient cash in hand and
also filed the statement of affairs before the lower authorities in his paper
book page No. 4-18. The additional evidence clearly proves even the
source of the source and the same is required to be seen a whole to decide
the issue on hand. The ld. AR of the assessee also submitted that a copy of
additional evidence filed so as to substantiate the withdrawal of cash and
immediate credit of the same by filing gift deed and bank pass book of Sh.
Raghuvir (his father based on this document). The ld. AR of the assessee
7 ITA No. 420/JP/2022 Babli vs. ITO substantiated the availability of the cash and its source considering this
aspect of the fact of the case should not have sustained the addition of Rs.
6,60,000/-.
Per contra, the ld. DR objected the additional evidence filed by the ld.
AR of the assessee and prayed that the same cannot be entertained at this
stage.
In rejoinder the ld. AR of the assessee that he will through oversight
has not been submitted the additional evidence petition but to substantiate.
Further, the statement of affairs filed before the lower authorities. He has
filed this additional document so as to substantiate availability of the cash
and its source the Bench may permit to assessee filed additional evidence
petition but the related paper book in the form of statement of affairs is
already on record in his assessee’s paper book page No. 4 to 18.
We have heard the rival contentions and perused the material placed
on record. The bench noted that the ld. CIT(A) has rejected the claim of the
assessee saying that the assessee has not filed any evidence about the
source of the cash receipt or cash withdrawal to justify the source of the
8 ITA No. 420/JP/2022 Babli vs. ITO money deposited in the bank. Based on the fact as argued by the ld. AR of
the assessee we feel it in the interest of justice to allow the additional
evidence to substantiate the cash withdrawal and its source. But since, this
evidence were not produce with the file of the lower authorities we feel it
admit this additional evidence. This source is supported from the additional
evidence as assessee has already got part relief from the ld. CIT(A) the
only survived addition is for Rs. 6,60,000/- to adjudicate this issue we deem
it fit admit this additional evidence and send it back to the file of the ld. AO
to consider the plea of the assessee and decide the issue in accordance
with the law. The assessee is also directed to co-operate with the ld. AO in
deciding the issue on merits and without sufficient reason, not to take
further adjournments. Before parting, we may make it clear that our
decision to restore the matter back to the file of the ld. AO shall in no way
be construed as having an reflection or expression on merits of the dispute,
which shall be adjudicated by the learned assessing officer independently in
accordance with the law.
In the result, appeal of the assessee is allowed for statistical
purposes.
9 ITA No. 420/JP/2022 Babli vs. ITO Order pronounced in the open court on 03/05/2023. Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 03/05/2023 *Ganesh Kumar आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Babli, Alwar izR;FkhZ@ The Respondent- ITO, Ward-Bhiwadi 2. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZ QkbZy@ Guard File (ITA No. 420/JP/2022) 6. vkns'kkuqlkj@ By order,
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