DIGAMBER JAIN SWADHYAY MANDIR TRUST,BHAVNAGAR vs. THE DY.CIT, CIRCLE-1 (EXEMP.), AHMEDABAD

The Registry has noted that there is a delay of 82 days in filing the above appeal. The assessee explained by way of a Notarized Affidavit that as against the regular assessment order passed u/s. 143(3) of the Act dated 06.12.2018 assessee’ appeal pending before Ld. NFAC. Assessee was of the wrong impression, separate appeal is not required to be filed against the appellate order passed against Rectification order, but the same was clarified by the Chartered Accountant. It is thereafter the assessee filed the above appeal with a delay of 82 days which is neither wilful nor wanton and therefore requested to condone the delay.

Ld. CIT-DR though initially objected the delay in filing the appeal and then left to the wisdom of the Bench. We are satisfied that the reason explained in the Affidavit thereby we condone the delay of 82 days in filing the above appeal and take up the main appeal for adjudication.

Brief facts of the case is that the assessee is a religious Trust maintaining Derasar (Temple), Atithi House (Guest House) and Bhojanshala (Mess) at Songadh (Palitana, Bhavnagar, Gujarat). For the Asst. Year 2016-17, assessee Trust filed its Return of Income on 14.09.2016 declaring Nil income. The return was taken up for scrutiny assessment on the ground that total cash deposits in Bank of India is Rs.1,34,40,611/- and the same was required to be explained. Since the assessee Trust failed to reply, the Assessing Officer held that the cash deposits in the bank account as unexplained and added to the total income of the assessee and demanded tax thereon. It is thereafter, the Assessing Officer found A.Y. 2016-17 Page No 3 Digamber Jain Swadhyay Mandir Trust vs. DCIT that the tax liability on the unexplained cash deposit had to be calculated as per the provisions of Section 115BBE at 60%. However by oversight mistake, the tax is calculated @ 30% plus applicable surcharge, education cess and interest. Hence a show cause notice was issued to the assessee why not to levy tax at 60% as per the provisions of Section 115BBE of the Act.

The A.O. was not satisfied with the reply of the assessee and reasons for cash deposits and thereby held that the cash deposits being unexplained is liable to be taxed at 60% u/s. 115BBE of the Act and revised the tax demand accordingly.

Aggrieved against the Rectification order, assessee filed an appeal before Ld. NFAC. The various submissions made by the assessee were considered by Ld. CIT(A) and ultimately held that the Rectification order passed by the Assessing Officer as correct in law and thereby dismissed the assessee appeal.

Aggrieved against the appellate order, the assessee is in appeal before us raising the following Grounds of Appeal:

The Ld. CIT(A) has erred in law and on facts of the case in confirming the rectification order u/s. 154 of the Act in absence of any mistake apparent from record.

The Ld. CIT(A) erred in not appreciating that invocation of S.115BBE after the assessment order is framed is beyond the scope of Section 154 of the Act and therefore he ought to have held it illegal and without jurisdiction.

The Ld. CIT(A) erred in law and on facts of the case in invoking Section 292B of the Act for curing the defect of non-issuance of demand notice u/s. 154(6) of the Act.

Both the lower authorities have passed the orders without properly appreciating the facts and they further erred in grossly ignoring various submissions, explanations and information submitted by the appellant from time to time which ought to have been considered before passing the impugned order. The action of the lower authorities is in clear breach of law and Principles of Natural Justice and therefore deserves to be quashed. 5. The Appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal.

We have given our thoughtful consideration and perused the material available on record. Since the appeal against the regular assessment order is pending before Ld. NFAC, we deem it fit to set A.Y. 2016-17 Page No 5 Digamber Jain Swadhyay Mandir Trust vs. DCIT aside the present appellate order with a direction to Ld. NFAC to decide this appeal along with the main appeal in Acknowledgement No. 404914390030119 pending before him. Needless to state that proper opportunity of hearing be given to the assessee.

In the result, the appeal filed by the Assessee is allowed for statistical purpose.