AMIT KUMAR GANGULY,MUMBAI vs. ITO 11(1)(1), MUMBAI

2 ITA 2453/Mum/2013 ITA 2487/Mum/2013 2. At the outset, the appeal for the assessment year 2006-07 being is time barred by 654 days. In support of the petition for condonation of delay, sworn affidavit of the assessee has been filed stating the detail reasons for delay in filing of the appeal. The entire delay has been stated to be on account of non-communication of order and non-coordination by the authorized representative who was looking after the matter before the appellate authority. It has been stated that, assessee has appointed a Chartered Accountant who was residing at Rajkot and in turn he has entrusted the assignment to another CA in Mumbai, who did not consult the assessee during the course of the assessment as well as appellate proceedings nor tender any advice for filing for filing of the appeal. Further, the assessee had suffered was suffering with serious ailment and was diagnosed with two blockages in heart and was admitted in the hospital for angiography and later on also he had medical problems. It was for this reason that the assessee could not pursue the matter for filing of appeal. Thus, it has been pleaded in these circumstances delay should be condoned.

After hearing both the parties and on favourable consideration of facts and circumstances as made out in the averments of the assessee in the sworn affidavit, we find that there was a bona fide and reasonable cause in not filing the appeal in time, therefore, the delay of 654 days is condoned.

Before us, the Ld. Counsel, Shri Pramod Kumar Parida submitted that, the additions has been made in both the years on account of unexplained cash credit appearing in the bank account of the assessee in HDFC Bank, Kandivali (East), Mumbai. During the course of the assessment proceedings, it has been alleged by the AO that the assessee has failed to produce the necessary details and it was stated that the money has been deposited out of professional fees received by the assessee which could not be incorporated in the regular books of account. The AO after detailed

The Ld. Counsel before us, submitted that the assessee all throughout was not represented well and during the course of the entire assessment proceedings and appellate proceedings, the assessee was neither confronted nor was asked to furnish any details by his CA. The Chartered Accountant representing the case has filed the details without consulting the appeals and, therefore, there was no proper compliance on the various dates fixed by the CIT(A). Thus in the interest of substantial justice, the matter should be restored to the file of the AO to enable him to file proper representation and evidences. He further submitted that assessee was suffering from heart ailment and was suffering from other ailments also for last several years and this has also reflected in his earning of professional income. Thus, under the facts and circumstances, he pleaded that assessee should be given one more opportunity to represent its case properly. All these facts have been narrated by the assessee by way of averments made in the affidavit filed before us.

On the other hand, Ld. DR submitted that already various opportunities have been given by the CIT(A) and has called for the remand report. After considering all the facts and materials on record he has confirmed the addition on the ground that assessee could not substantiate the cash deposits in the bank account properly.

After considering the totality of the facts and circumstances and also the quantum/request made before us by the assessee who was also present at the time of hearing, we find that in the interest of substantial justice the matter should be restored back to the file of the AO to give one more opportunity to the assessee to represent its case so that assessee can furnish proper evidences to substantiate the credits appearing in the bank account. Accordingly, the whole issue of addition on account unexplained credit in the bank account is set aside to the file of the AO to decide the issue afresh and assessee would be at liberty to file all such necessary documents / evidences and substantiate its explanation. AO shall examine the same afresh and decide the 5 ITA 2453/Mum/2013 ITA 2487/Mum/2013 issue in accordance with the law and after giving due opportunity to the assessee. The assessee will also ensure that this time representation should be made properly before the Departmental authorities. With this direction the grounds raised by the assessee for both the years are treated as allowed for statistical purposes.

In the result, both the appeals of the assessee are allowed for statistical purposes. Order pronounced in the open court on 3rd February, 2016.