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Income Tax Appellate Tribunal, RAJKOT BENCH, RAJKOT
Before: Shri Waseem Ahmed & Shri Siddhartha Nautiyal
आदेश/ORDER
PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:-
This assessee’s appeal for A.Y. 2016-17, arises from order of CIT(A), Jamnagar dated 07-11-2019, in proceedings under section 144 of the Income Tax Act, 1961; in short “the Act”.
I.T.A No. 304/Rjt/2019 A.Y. 2016-17 Page No 2 Shri Nirav H. Kanabar (Prop. Of Heena Electronics) vs. ITO
The assessee has raised the following grounds of appeal:-
“All the below mentioned grounds of appeal are independent and without prejudices to each other. 1. Ld. CIT(A) has erred in rejecting appeal by not considering the reason for condonation of delay submitted by appellant while filing appeal. 2. Ld. AO erred in law as well on facts in making addition of Rs. 37,000/- for the difference between income as per books and income as reflected in 26AS. 3. Ld. AO erred in law as well on facts in making disallowance of Rs. 9,96,586/- being 20% of the expenses claimed by the appellant. Appellant craves leave to add, amend or withdraw any ground of appeal.”
The brief facts of the case are that the assessee is an individual carrying on the business of trading in electronic items and recharges of dish TV to the sub- dealers. During the course of assessment, the AO issued several notices to the assessee, however, in absence of any response from the assessee, the AO passed ex-parte order making certain disallowances to the returned income filed by the assessee. The assessee filed appeal before Ld. CIT(Appeals) against the aforesaid order passed by the AO, and even in the appellate proceedings, there was non-appearance on part of the assessee. In the appellate proceedings, the Ld. CIT(Appeals) observed that there has been a delay in filing of appeal by the assessee beyond the prescribed time limit and in the form 35 filed by the assessee, the assessee has not given any reason for delay in filing of appeal. Further, Ld. CIT(Appeals) observed that the assessee filed an Affidavit in which he stated that the delay in filing of appeal was caused since the part time accountant of the assessee was pre- occupied with a medical emergency of one of his close relatives and hence
I.T.A No. 304/Rjt/2019 A.Y. 2016-17 Page No 3 Shri Nirav H. Kanabar (Prop. Of Heena Electronics) vs. ITO
he was not able to provide the details/documents called for in the prescribed time limit. However, Ld. CIT(Appeals) held that the since the Affidavit filed by the assessee is general in nature and is not supported by any documentary evidences, he dismissed the appeal of the assessee with the following observations:
“2. Thus as per the appellant the reasons for condonation of delay in filing of appeal is as per attachment. However, on verification made from work list of ITBA, no any attachment explaining the reasons for condonation for delay in filing of appeal is found to be enclosed or attached with the form no. 35. In my opinion the column no. 15 in form no. 35 is specifically provided for mentioning the reasons for condonation for delay in filing of appeal and therefore the appellant was required to mention or explain the reason in such column no. 15 of form no. 35 for delay in filing of appeal and which he has not done. As stated above no attachment is found with form no. 35 in the worklist of ITBA. However copy of affidavit dated 01/02/2019 of the appellant has been found to be attached with form no. 35 and copy of another affidavit dated 01/02/2019 of one Shri Rajkumar. Ramniklal Ghedia is also found to be attached with this form no. 35 and these persons i.e. Shri Rajkumar Ramniklal has claimed himself in the affidavit as an accountant. In the copy of affidavit of the appellant it is mentioned that he is staying in the backward region of the country and is not educationally qualified and all the notices including notice u/s. 142(1) as issued by the department were handed over by him to his part time accountant who was assigned responsibility of co-ordinating the same with the practicing tax consultants of his region. It is mentioned in this affidavit that in the month of January 2019 his bank account was seized for out standing tax demand pertaining to 2016-17. In this affidavit it is mentioned that on further inquiry of his part time accountant he came to know that this part time accountant was preoccupied with medical emergency of one of his close relatives and hence he was not able to provide the details/ documents called for in the prescribed time limit. In this affidavit it is further mentioned that thereafter he approached a new tax consultant and according to the advice given, he has filed appeal and delay in filing appeal was for this sufficient reason and hence delay in filing of appeal is requested to be condoned. But this affidavit of the appellant is vague and is of general in nature and is not supported by any documentary evidences. First off all, the appellant has not furnished the original affidavits and he has also not furnished the complete details of the accountant i.e. his name, his residential address etc. Secondly no any proof is filed by the appellant to show that he had engaged any part time accountant for his income tax purpose. Thirdly the assessment order u/s. 144 was served by the AO at the address of the appellant and therefore it can safely be presumed that he was aware of this order u/s. 144
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of the Act which was sent by the department at his address. The appellant has not furnished any evidence to show that there was medical emergency of one of the close relatives of the accountant. The fact is mat the assessment proceeding in the case of appellant was started by the AO by way of issue of notice u/s. 143(3)(2) of the Act on 03/07/2017 and the assessment was completed in his case ex-parte on 15/12/2018 i.e. almost after 16 months and therefore it cannot be said that there was medical emergency of the relative of the accountant for such a long period and even if it was there for such a long period then also it can be presumed that the accountant would not take the responsibility of work of the appellant related to income tax in such circumstances. Again the affidavit of so called accountant is also very vague and without any supporting evidences. The accountant has not disclosed his complete identity in such affidavit. The accountant has mentioned only his name and his address and name of his father etc, are not mentioned in the affidavit. No any evidence is furnished to show that this person i.e. Rajnikant Ramniklal was actually accountant by profession and he had worked as accountant for the appellant. Considering all these facts, the reasons as advanced by the appellant in the form of copy of affidavits are not found to be satisfactory and therefore the delay in the case of appellant for filing of appeal is hereby at condoned. Thus the appeal of the appellant is dismissed on this ground.”
Before us, the counsel for the assessee submitted that the assessee has a good case on merits and all the additions have been made by the AO in the assessment order only on estimate basis. He further submitted that addition on account of reconciliation in respect of commission income earned by the assessee is also fully explained and if given an opportunity, the assessee shall prove the genuineness of all the expenses claimed in the return of income. However, we observe that the assessee, both during the course of assessment and appellate proceedings displayed a non-cooperative attitude, as a result of which the orders by the AO and Ld. CIT(Appeals) had to be passed only on the basis of material available on record in absence of any corporation forthcoming on the part of the assessee. Accordingly, in interest of justice, we are restoring the matter to the file of AO for necessary verification, subject to assessee paying nominal cost of � 5000/- to be paid in the “Prime Minister Relief Fund” in view of the facts narrated above.
I.T.A No. 304/Rjt/2019 A.Y. 2016-17 Page No 5 Shri Nirav H. Kanabar (Prop. Of Heena Electronics) vs. ITO
In the result, the appeal of the assessee is allowed for statistical purposes and subject to payment of cost of � 5000/- as mentioned above
Order pronounced in the open court on 12-12-2022
Sd/- Sd/- (WASEEM AHMED) (SIDHHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 12/12/2022 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order, Assistant Registrar, Income Tax Appellate Tribunal, Rajkot