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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. 274/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. 274/JP/2022 fu/kZkj.k o"kZ@Assessment Year : 2013-14. cuke Shri Ashok Ghiya, Income-tax Officer, Vs. B-6, Hari Marg, Malviya Nagar, Ward 6(1), Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No. ABAPG 1596 Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Saurabh Harsh (Advocate). jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (Addl.CIT) lquokbZ dh rkjh[k@ Date of Hearing : 08/02/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 3/04/2023 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order dated 25.03.2022 of ld. CIT (A), National Faceless Appeal Centre (NFAC), Delhi for the assessment year 2013-14. The appeal filed by the assessee is delayed by 50 days. The assessee has filed an application praying condonation of delay. In support of the application, the assessee has submitted an Affidavit stating that the appeal order was served on the assessee by email on 28.03.2022 and due to oversight the same has been left to be seen by the assessee. Subsequently, when it came to his knowledge about the impugned order, he approached his Chartered Accountant for further action and immediately on the basis of opinion of Chartered Accountant the appeal papers were sent to his Counsel for preparation and filing of the appeal before the Tribunal. The process of preparation and filing of appeal at the end of the Counsel took some time and it caused delay in filing the appeal. The assessee submitted that there was no intentional delay but the delay was beyond the control of the assessee and prayed condonation of delay.
Having considered the rival submissions as well as going through the contents of the application and affidavit of the assessee, we are satisfied that the assessee has explained a reasonable cause for not filing the appeal within the period of limitation. Accordingly, we condone the delay of 50 days in filing the present appeal.
The assessee has raised the following grounds of appeal :-
1. That in law and in the facts and in circumstances of the case, the ld. CIT (Appeals) grossly erred in passing ex-parte assessment order without providing sufficient opportunity of being heard as no notices of the hearing was served properly on the assessee appellant.
2. That in law and in the facts and in circumstances of the case, the ld. Lower authorities grossly erred in making the entire addition of Rs. 22,73,500/- having been deposited during the course of business in The HDFC bank account of the assessee appellant proprietary firm.
2.1 That the assessee deposited cash from his regular dash in hand and maintaining extra cash in hand for meet their personal expenses and most of the amounts having been withdrawn and re-deposited, the ld. Assessing Officer grossly erred in making the entire addition of Rs. 22,73,500/- as unexplained cash deposit which is unjustified, bad in law and deserve to be deleted.
3. The appellant craves leave to add, alter, modify or amend any ground on or before the date of hearing.
4. The brief facts of the case are that the assessee appellant is a proprietor of M/s. Shri Radhey Sales Corporation and is engaged in the business of trading of Desi Ghee, Spice, Edible Oil and commodity trading and share trading. The assessee filed his return of income for the assessment year 2013-14 on 24.09.2013 declaring total income of Rs. 5,35,290/-. The case of the assessee was selected for scrutiny through CASS. Notice under section 143(2) was issued on 01.09.2014 which was duly served upon the assessee. Notices under section 142(1) along with questionnaire dated 25.11.2014 and 24.09.2015 were issued to the assessee. In response, the assessee along with his Chartered Accountant attended the proceedings from time to time, filed books of accounts, information and documents as required by the AO and were examined on test check basis. During the year under consideration the A.O. found cash deposits in the bank account of the assessee’s proprietary firm and has treated the same as unexplained cash deposit under section 69A of the IT Act without considering and appreciating the replies filed by the assessee. Aggrieved by the order of the AO, the assessee preferred appeal before ld. CIT (A). The ld. CIT (A) dismissed the appeal of the assessee holding that the assessee was unable to furnish any supporting evidence to controvert the findings contained in the assessment order, thus the burden of proof of explaining the nature and source of cash deposits remains un-discharged.
Now the assessee is in appeal before the Tribunal.
The solitary ground of the assessee is challenging the addition of Rs. 22,73,500/- as unexplained cash deposit in the bank account.
5. Before us, the ld. A/R for the assessee submitted his written submissions as under :-
“ 1. That appeal was filed by the assessee appellant before the ld. CIT(A), Jaipur against the assessment order dated 29.12.2015.
2. That subsequent to filing of appeal, the appeal was migrated to National Faceless Appeal Centre in from jurisdictional CIT(A) in terms of Notification No 76/2020 dated 25.09.2020.
3. That ld. CIT(A), NFAC had issued the notices of hearing on 07.01.2021, 03.03.2021, 08.07.2021, 27.12.2021 and 01.03.2022.
That on the income tax e-filing portal the communication email of the assessee is ashokghiya@yahoo.co.in and all the communication is receive to the assessee on this email only and no email of Chartered Accountant or any other representative of the assessee is there in communication email.
5. That all the notices were sent on the email i.eashokghiya@yahoo.co.in and due to technical glitch the notices for hearing were sent in the SPAM box of email account instead of reflecting in the INBOX box of the email account and because of this technical glitch the knowledge of fixing the date of hearing and number of notices issued to the assesseecould not be get into the knowledge of the assessee. The assessee also does not regularly look into this email.
6. That non-compliance of the notices of hearing issued by the ld. CIT(A), NFAC was not intentionally and merely due to technical glitch which is beyond the control of the assessee
7. That assessee shall be vigilant of the appeal proceeding in the future and will do the needful to remove this technical glitch.
Therefore, in the interest of the natural justice, it is humbly requested that matter may kindly be remanded back for fresh hearing and to provide one opportunity to the aseesee appellant to submit the submission on merits before ld. CIT(A).”
On the other hand, the ld. D/R supported the orders of the Revenue authorities.
We have heard ld. Counsels of both the parties and perused the material on record and also gone through orders of the revenue authorities and the case laws mentioned therein. On going through the impugned order, we note that the ld. CIT (A) has decided the appeal of the assessee by observing in para 5 of his order as under :-
“ 5. During the course of appellate proceedings hearing notices u/s 250 of the Act were issued non 07.01.2021, 03.03.2021, 08.07.2021, 27.12.2021 and 01.03.2022 fixing date of hearing on 22.01.2021, 10.03.2021, 23.07.2021, 11.01.2022 and 15.03.2022 respectively. During the course of appellate proceedings the appellant has not responded to any of notices of hearing issued. Inspite of various opportunities being given, no adjournment letter was ever filed nor were any submissions been filed. Therefore, the appellant was informed in the hearing notice issued on 01.03.2022 that last opportunity is being provided to furnish details in support of grounds of appeal, failing which matter will be completed as per details on record. However, again there was no compliance. Hence the appeal is being disposed off as per material on record.”
The ld. CIT (A) has decided the appeal considering that the appellant has been unable to furnish any supporting evidence in support of grounds of appeal or produce any material to controvert the findings contained in the assessment order thereby the burden of proof of explaining the nature and source of cash deposits remains undischarged. Thus it is evident that the ld. CIT (A) has dismissed the appeal of the assessee for want of prosecution as the assessee has not availed so many opportunities given to the assessee to controvert the findings contained in the assessment order. From the entire sequence of events and the conduct of the assessee in non compliance of the repeated notices, it appears gross negligence on the part of the assessee and wastage of precious time. In our considered view, non 6 Shri Ashok Ghiya, Jaipur. compliance of notice issued by the Authorities and non appearance before the Authorities inspite of repeated notices/summons is dis-regard towards the Authorities. Be that as it may, without going into merits, considering the interest of natural justice, one more opportunity is granted to the assessee, and the file is restored back to the ld. CIT (A) for deciding the matter afresh after considering the arguments as well as the documentary evidence, if any, to be filed by the assessee, subject to cost of Rs. 2,000/- for negligent attitude during income tax proceedings, to be deposited in the Prime Minister’s Care Fund and proof thereof should be produced.
In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 3/04/2023.
Sd/- Sd/- ¼lanhi xkslkbZ½ ¼ jkBkSM+ deys'k t;arHkkbZ ½ (RATHOD KAMLESH JAYANTBHAI) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 3/04/2023. Das/ आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Shri Ashok Ghiya, Jaipur. 2. izR;FkhZ@ The Respondent- The ITO, Ward 6(1), Jaipur. 3. vk;dj vk;qDr@ CIT 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 5. xkMZ QkbZy@ Guard File {ITA No. 274/JP/2022} vkns'kkuqlkj@ By order,
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