SARDAR SINGH RATHORE,JAIPUR vs. INCOME TAX OFFICER, WARD 4(5), JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR MkWa- ,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-@ fu/kZkj.k o"kZ@Assessment Years : 2011-12 cuke Sardar Singh Rathore ITO, 304, Subhash Colony, Shastri Vs. Ward- 4(5), Jaipur. Nagar, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AEDPR 5993 L vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Rohan Sogani (C.A.) jktLo dh vksj ls@ Revenue by : Ms Monisha Choudhary (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing 14/03/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 20/03/2023 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M.

This is an appeal filed by the assessee against the order of the National Faceless Appeal Centre, Delhi [hereinafter referred to as “NFAC/CIT(A)”], dated 30.11.2022 for the assessment year 2011-12, which in turn arises from the order passed u/s 271(1)(c) of the Income Tax Act, 1961 ( in short ‘ the Act’) by the Income Tax Officer, ward-4(5), Jaipur dated 25.04.2019.

Sardar Singh Rathore vs. ITO The assessee has raised the following grounds:-

2. “1. In the facts and circumstances of the case and in law, the ld. CIT(A) has erred on confirming the imposition of penalty amounting to Rs. 6,63,370/-. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by deleting the penalty imposed of Rs. 6,63,370/-.

2. In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in not condoning the delay in filing the appeal and dismissing the appeal of the assessee at the threshold. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Appropriate relief may please be granted.

3. In the facts and circumstances of the case and in law, the ld. CIT(A) has erred in passing the ex-parte order without deciding the case on merits. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing such order.

4. The assessee craves his rights to add, amend or alter any of the grounds on or before the hearing.”

3. The brief facts of the case are that as per AIR information generated through AST system the assessee had deposited cash of Rs. maintained in SBBJ, Gopalbari, Jaipur Rs. 26,33,500/- in his savings bank account and ICICI Bank during the Financial year 2010-11 relevant to A.Y.2011-12. Though, in the absence of full and true particulars reliance is placed on AIR information available on record. In respect of Sardar Singh Rathore vs. ITO the aforementioned cash deposit/credit transactions of Rs. 26,33,500/- no compliance was made by the assessee during the course of the whole proceedings and no return of income was filed in response to the notice issued u/s 148 of the IT Act, 1961. Therefore, the assessee failed to furnish any satisfactory explanation /justification with regard to the source of the cash deposit/credit transactions made during the year. Therefore, cash deposit/credit transactions made to the tune of Rs. 26,33,500/- is treated as unexplained credit within the meaning of provisions of section 68 of the IT Act, 1961. Accordingly an addition of Rs. 26,33,500/- is made to the total income of the assesses.

Sardar Singh Rathore vs. ITO 2. Tax on income excluding concealed income Rs. 0/- 3. Tax sorted to be evaded (1-2) Rs. 6,63,370/- 4. 100% of tax sought to be evaded Rs. 6,63,370/- 5. 300% of tax sought to be evaded Rs. 19,90,110/- Penalty u/s 271(1)(c) is imposed for Rs. 6,63,370/- being 100% of tax sought to be evaded.

5. The assessee has filed the appeal before the ld. CIT(A) who after hearing the contention of the assessee dismissed the appeal of the assessee by giving his following relevant findings on the issues:- “ The appellant has filed the appeal on 02.10.2020 against the order received by it on 27.08.2020, which is belated as per Section 249(2) of the I.T. Act, 1961. The appellant has claimed to have received the certified true copy of the order under consideration on 27.08.2020. However, from the perusal of the attached copy of the assessment order, it is clear that the appellant had received the order on time as no certification by the Assessing Officer is apparent on the face of the assessment order with regard to the certified copy being given to the appellant after such a long delay of six months, which is the mandatory procedure adopted by AO while handing over the copy of assessment order on request. Moreover, even if the claim of the appellant regarding the late service of the order is considered, the appeal has been filed after a period of 36 days after the receipt of order, as claimed by the appellant, thereby resulting into a overall delay in filing of appeal. Therefore, considering the above facts, it is Sardar Singh Rathore vs. ITO clear that there is no reasonable cause of delay in filing the appeal. Hence, the appeal of the appellant is not admitted and condonation of delay is not granted. 5. As a result, the appeal is dismissed.”

6. The ld. AR for the assessee appearing before us submitted that the assessee was under the bonafide belief that the since his quantum appeal is pending, the penalty appeal may not persuaded and therefore, under that bonafide believe he remained non-compliant before the ld. CIT(A). The ld. AR for the assessee has submitted that an affidavit stating that the quantum appeal is pending for disposal that he sought adjournment in quantum appeal on 07.11.2022, notice for enablement was issued in quantum appeal. The said quantum appeal is pending for disposal under Appeal No. NFAC/2010-11/10009042. The screenshot of the Income Tax Portal evidencing the said appeal is placed on record. That on 07.11.2022 notice for enablement was also issued in penalty appeal. That the ld. CIT(A) vide order dated 30.11.2022 decided the penalty appeal before the quantum appeal.

7. On the other hand, ld. Sr. DR supported the order of the ld. CIT(A) and submitted that the assessee remained non-compliant to the three notices issued and has not submitted any justifiable reason so as to Sardar Singh Rathore vs. ITO remain non attentive to the notices so issued. At the same time looking to the arguments of the ld. AR, she has fairly admitted that in the interest of justice let this the issue be restored to the file of the ld. CIT(A) as the quantum appeal of the assessee is pending before ld. CIT(A).

“Affidavit

I, Sardar Singh Rathore, Aged 48 years, resident of Plot No. 304 subhash Colony, Shastri Nagar, jaipur, do hereby declare on oath as under:

Sardar Singh Rathore vs. ITO 3. That resultant penalty u/s 271(1)(c) amount to Rs. 6,63,370/- was imposed vide order dated 24.04.2019. Aggrieved by the said order, I preferred appeal before ld. CIT(A).

4. That both quantum appeal and penalty appeal were fixed.

8.1 Further, the ld. AR for the assessee has strongly supported his arguments with this Hon’ble Bench order in case of Shri Dharamraj Singh vs. ITO in dated 20.02.2023 wherein held as under:- “7.1 The Bench also noted from the entire episode that the assessee is deprived off to get the justice from the judicial authorities below because of technical latches as quantum appeal of the assessee has direct bearing on the levy of penalty and the same is pending before ld. CIT(A) and the assessee merely on technical ground deprived off from the justice which should not be done. Hence, the Bench in the interest of equity and justice restores the appeal of the assessee to the file of the ld. CIT(A) for afresh adjudication taking into consideration the fact that the quantum appeal of the assessee is also pending before ld. CIT(A). The assessee is also directed not take adjournment on frivolous ground and cooperate the ld. CIT(A) for adjudication of the appeals filed by the assessee.”

Sardar Singh Rathore vs. ITO Since the issue involved in the appeal of the assessee for the assessment year 2011-12 is similar to the appeal in the case of Shri Dharamraj Singh vs. ITO (supra) therefore, the decision taken by us in the case of Shri Dharamraj Singh vs. ITO (supra) shall apply mutatis mutandis, Thus, the appeal of the assessee is allowed for statistical purpose.

In the result, the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open Court on 20/03/2023.