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Income Tax Appellate Tribunal, “B” BENCH, AHMEDABAD
Before: SHRI RAMIT KOCHAR & MS. SUCHITRA KAMBLE
आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण,“बी बी” ब"च ब"च, अहमदाबाद "यायपीठ अहमदाबाद "यायपीठ, अहमदाबाद अहमदाबाद । आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण बी बी ब"च ब"च अहमदाबाद "यायपीठ अहमदाबाद "यायपीठ अहमदाबाद अहमदाबाद IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, AHMEDABAD ] ] BEFORE SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER & MS. SUCHITRA KAMBLE, JUDICIAL MEMBER Assessment Year : 2014-15 Shri Babubhai Bhimajibhai The ITO Mali v. Ward-1(2)(1) 120, M.G. Market, Ahmedabad-380015 Shanti Commercial Centre Gujarat Nagar Sheth HO Vando Gheekanta Ahmedabad – 360 001 Gujarat PAN:AAPPM 7611 N अपीलाथ"/ (Appellant) अपीलाथ" "" यथ" "" य थ"/ (Respondent) अपीलाथ" अपीलाथ" "" य "" य थ" थ" Assessee by : Shri Prashant Shrivastav, CA Revenue by : Shri Vipul Chavda,Sr. DR
सुनवाई क" तारीख/Date of Hearing : 18/01/2024 घोषणा क" तारीख /Date of Pronouncement: 18/01/2024 आदेश/O R D E R आदेश आदेश आदेश Per Coram,
This appeal filed by the Assessee is directed against the appellate order dated 12/03/2022 passed by Ld. Commissioner of Income-tax (Appeals), National Faceless Appeal Centre, Delhi [“CIT(A)” in short] under section 250 of the Income Tax Act, 1961 (hereinafter called “the Act”) for Assessment Year 2014-15 (DIN & Order No.ITBA/NFAC/S/250/2021- 22/1040635307(1)), the appellate proceedings have arisen before Ld.CIT(A) Shri Babubhai Bhimajibhai Mali v. ITO AY 2014-15
from assessment order dated 30/12/2016 passed by Ld. Assessing Officer (hereinafter called “the AO") u/s. 144 of the 1961 Act.
The assessee has raised following grounds of appeal in Memo of Appeal filed with Income Tax Appellate Tribunal, Ahmedabad Benches, Ahmedabad (hereinafter called “the Tribunal):
“1. The Id. CIT(A) has erred in confirming the order of the Assessing officer passed under section 144. 2. The Ld. CIT(A) has erred in confirming the order of the Assessing officer passed under section 144, disallowing expenses of Rs.90,21,292/- claimed under section 57 of the IT Act, in the income tax return.
The Ld. CIT(A) erred in confirming the order of the AO under section 144 in making addition of expenses of Rs.21,42,000/- claiming it to be unexplained expenditure, whereas the expenditure of Rs.21,42,000/- is already part of the expenses of Rs.90,21,292/- which has been disallowed as stated in Ground No. 2 above.
Any other ground which may be urged before or during the time of hearing of the appeal.”
The brief facts of the case are that the assessee has filed its return of income for assessment year 2014-15 on 29/03/2016 declaring income at Rs.4,29,105/-. The case was selected for framing scrutiny assessment under CASS under limited scrutiny. The Assessing Officer passed the assessment order u/s.144 of the I.T. Act, 1961 dated 30/12/2016, wherein income of the assessee was assessed at Rs.1,15,92,397/-. The assessee filed its first appeal with Ld.CIT(A) , and the Ld.CIT(A) issued as many as seven notices to the assessee. The assessee did not comply with the notices issued by ld. CIT(A). Shri Babubhai Bhimajibhai Mali v. ITO AY 2014-15
The Ld.CIT(A) dismissed the appeal of the assessee by upholding the order of the Assessing Officer vide appellate order dated 12.03.2022, by observing as under:-
“6. In ITR-4, the appellant-assessee had disclosed receipt of Rs.93,31,005/- under the head Income from Other Sources for the activity 'Land Development Marketing'. And after claiming deduction u/s 57 of the Act at Rs.90,21,292/- offered Rs. 3,17,610/- as Income from Other Sources. AO had given numerous opportunities to the appellant-assessee. But no satisfactory submission was made by the appellant- assessee. The appellant-assessee claimed that the so called 'Land Development Marketing' income was subject to section 44AD of the Act.
After having considered the material on record, I find that AO had correctly brought to tax the receipt of Rs. 93,31,005/- as Business Income, 'wrongly claimed by the appellant-assessee as Income from Other Sources'. I, therefore, confirm the addition of Rs.93,31,005/-.
The second issue is addition of Rs.21,42,000/- u/s 69C of the Act.
After having considered the material on record, I find that AO had correctly made addition of Rs.21,42,000/- u/s 69C of the Act. I, therefore, confirm the addition of Rs.21,42,000/-.
Accordingly, relevant grounds of appeal are dismissed.
In the result, the appeal is dismissed.”
The assessee’s appeal is filed belatedly with ITAT with delay of 2 days beyond the time prescribed under Section 253(3) of the 1961 Act. The assessee has filed condonation application in which it is submitted that assessee was critically ill due to kidney ailment and undergoing dialysis , and hence the assessee could not file the appeal in time with ITAT and there was a delay of two days in filing this appeal. The Department has no Shri Babubhai Bhimajibhai Mali v. ITO AY 2014-15
serious objection to the condonation application filed by the assessee. After hearing both the parties, we condone the delay of 2 days in filing the appeal belatedly by the assesse with ITAT beyond the time prescribed u/s 253(3) of the 1961 Act. If the technicalities are pitted against substantial justice, the courts will lean towards advancement of substantial justice , unless malice is at writ large. We do not find and malafide on the part of the assesse in filing this appeal belatedly with ITAT with delay of 2 days, and hence we condone this delay. We order accordingly. 4.1. Assessee has filed its second appeal before the ITAT, and the ld.counsel for the assessee, at the outset, submitted that a non-speaking, non-reasoned and cryptic order was passed by the ld.CIT(A) which is not in compliance with the provisions of Section 250(6) of the IT Act, 1961. 5. The Ld.DR has no objection if the matter is restored back to the file of Ld.CIT(A) for decision afresh on merits in accordance with law.
After hearing both the parties and considering the material available on record, we are of the considered view that, in the instant case, the Ld.CIT(A) has not adjudicated the issue’s in appeal on merits , and has simply dismissed the appeal of the assessee by passing a non-speaking, non- reasoned and cryptic order, and has merely upheld the addition made by the Assessing Officer by holding that AO has correctly made the additions. There is no independent application of mind by ld. CIT(A). In our view, the appellate order passed by the Ld.CIT(A) is not in compliance with the provisions of section 250(6) of the Act, and is required to be set aside with matter to be restored to the file of ld. CIT(A) for fresh adjudication of the appeal of the assessee. Thus, in the interest of justice and fair play, we are Shri Babubhai Bhimajibhai Mali v. ITO AY 2014-15
inclined to restore the matter back to the file of Ld.CIT(A) with the direction to pass a reasoned and speaking order after providing reasonable and proper opportunity of being heard . Thus, we set aside the order of the Ld.CIT(A) and restore the matter back to the file of Ld.CIT(A) for fresh adjudication of all the issues on merits in accordance with law after affording a proper and adequate opportunity of being heard. We clarify that we have not commented on the merits of the issue in the appeal, and all the contentions are kept open. As a result, assessee’s appeal is allowed for statistical purposes. We order accordingly.
In the result, the appeal of the assessee is treated as allowed for statistical purposes.
Order pronounced in the Open Court on 18th January, 2024 at Ahmedabad in the presence of both the parties, and reduced to writing and signed on 23rd January, 2024. ( SUCHITRA KAMBLE ) ACCOUNTANT MEMBER
Ahmedabad, Dated 23/01/2024 टी.सी.नायर, व.िन.स./T.C. NAIR, Sr. PS आदेश क" "ितिलिप अ"ेिषत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant 2. ""यथ" / The Respondent. 3. संबंिधत आयकर आयु" / Concerned CIT 4. ( ) / The CIT(A)-(NFAC) आयकर आयु" अपील 5. , , राजोकट/DR,ITAT, Ahmedabad, िवभागीय "ितिनिध आयकर अपीलीय अिधकरण 6. गाड" फाईल /Guard file. Shri Babubhai Bhimajibhai Mali v. ITO AY 2014-15
आदेशानुसार/ BY ORDER, स"यािपत "ित //// सहायक पंजीकार (Asstt.