AVDHESH,PATEL NAGAR, V. INCOME TAX OFFICER, DHAR

ITA 802/IND/2024

AI Insights

The case involves Avdhesh Baggad, who appealed against the order of the Commissioner of Income-Tax (Appeals), which upheld the assessment order passed by the AO under section 144 of the Income-tax Act, 1961. The AO had made an addition of Rs. 12,56,000 for unexplained deposits in a bank account, which the assessee claimed did not belong to him. The ITAT found merit in the assessee's arguments, noting the existence of two PANs under the same individual and the improper assessment under the wrong PAN. The case was remanded for a fresh assessment considering the new evidence provided by the assessee.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 668872 (ITAT-INDORE)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Other Referred Cases: Collector, Land Acquisition Vs Mst. Katiji and others
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: FORASSESSEEFIRSTLYSUBMITTEDTHATTHEASSESSEEHASFILEDAN; FORREVENUELEFTTHEISSUEOFCONDONATIONOFDELAYFORTHE; SHRIASHISHPORWAL
• Assessee Lawyers: SHRIMILINDWADHWANI
• Keywords: Condonation of delay
• Section: 144

Judgement Text

"Page 1 of 12 आयकरअपीलीयअिधकरण, इंदौरɊायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI B.M. BIYANI, ACCOUNTANT MEMBER AND SHRI PARESH M. JOSHI, JUDICIAL MEMBER ITA No.802/Ind/2014 Assessment Year:2017-18 Avdhesh Baggad, Sadalpur, Dhar बनाम/ Vs. ITO Dhar (Assessee/Appellant) (Revenue/Respondent) PAN: BOZPA9769J Assessee by Shri Milind Wadhwani, AR Revenue by Shri Ashish Porwal, Sr. DR Date of Hearing 19.06.2025 Date of Pronouncement 23.06.2025 आदेश/ O R D E R Per B.M. Biyani, A.M.: Feeling aggrieved by order of first appeal dated 14.09.2023 passed by learned Commissioner of Income-Tax (Appeals), NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 06.12.2019 passed by learned ITO, Dhar [“AO”] u/s 144 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2017-18, the assessee has filed this appeal on following grounds: “1. On the facts and in the circumstances of the case the Ld. C.I.T.(Appeals) (NFAC) erred in upholding the assessment order passed by ld. A.O. by making assessment u/s 144 of Act, without considering the fact that Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 2 of 12 appellant has filed his return of income filed through operative PAN No. CDSPR2994D. 2. On the facts and in the circumstances of the case, the Ld. C.I.T.(Appeals) (NFAC) erred in upholding the assessment order passed by ld. A.O. by making addition of Rs. 12,56,000/- without considering his SCN dt. 16.09.2019 issued for Rs. 3,90,000/-. 3. On the facts and in the circumstances of the case, the Ld. C.I.T.(Appeals) (NFAC) erred in upholding the non-speaking order passed by Id. A.O. on the basis of information available on record about filing of return of income, nature and source of receipt of money and how income is taxable u/s 69A of the Income Tax Act, 1961.” 2. The registry has informed that the present appeal has been filed on 11.11.2024 against impugned order dated 14.09.2023 of first-appeal passed by Ld. CIT(A), therefore it is delayed by about 1 year and hence time-barred. Ld. AR for assessee firstly submitted that the assessee has filed an application for condonation of delay supported by a notarized affidavit. The affidavit so filed is scanned and re-produced below: Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 3 of 12 Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 4 of 12 Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 5 of 12 Referring to contents of affidavit, Ld. AR submitted that the assessee is having rural background and does not have sufficient knowledge of tax laws and technological systems (Para 2). That while conducting proceedings of first-appeal, Ld. CIT(A) served initial three notices of hearing dated 11.01.2021, 28.07.2023 and 10.08.2023 to the email id: [e-mail] which belonged to assessee’s previous counsel who never informed to assessee (Para 5, 6, 7). That, although the Ld. CIT(A) served fourth and last notice of hearing dated 06.09.2023 to assessee’s email id: [e-mail] besides serving on previous counsel but this last notice required assessee to submit reply by 11.09.2023 and since the assessee does not check-up his email a/c regularly, the email could not be noticed and reply could not be filed to CIT(A) which has led the CIT(A) to pass ex-parte order on 14.09.2023 of first-appeal (Para 8, 9, 10). Ld. AR submitted that neither the notices of hearing nor the impugned order passed by CIT(A) was physically served upon assessee. He submitted that the impugned order came to the knowledge of assessee only on 25.09.2024 when the recovery steps were taken by department through inspector (Para 11). That prior to 25.09.2024, the assessee had no knowledge of impugned order having been passed by CIT(A) as ex-parte (Para 13). Immediately, the assessee paid fee on 11.11.2024 and filed present appeal on 11.11.2024. This has only resulted in delayed filing of appeal. He very humbly submitted that there is no lethargy, negligence, mala fide intention or ulterior motive of assessee in Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 6 of 12 making delay and the assessee does not stand to derive any benefit because of delay. He submitted that the sole reason of delay is as explained by assessee in the affidavit and therefore the delay should be condoned having regard to the reason explained and in the interest of justice. 3. Ld. AR next submitted that that the AO has, in the assessment framed, made an addition of Rs. 12,56,000/- for unexplained deposit in “Narmada Jhabua Grameen Bank, Kukshi – A/c No. 601130110000019” but the said a/c belongs to some other person and not to assessee which is evident from following certificate issued by bank to assessee: Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 7 of 12 Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 8 of 12 He submitted that the addition made by AO is not sustainable since the impugned bank a/c picked by AO for making addition does not belong to assessee. Therefore, the case of assessee has a strong merit. He made a further request that since the assessment-order passed by AO is u/s 144 and the assessee is filed a new evidence in the form of bank certificate (as re-produced above), the present matter may be remanded to the file of AO for adjudication afresh. 4. Ld. DR for Revenue left the issue of condonation of delay for the wisdom of bench without raising any objection. He, however, agreed that the present case is suitable for remanding back to the file of AO since (i) the assessment-order is ex-parte u/s 144, (ii) the assessee has filed a new evidence by way of bank-certificate, and (iii) the assessee is admitting to possess two PANs. 5. We have considered the explanation advanced by assessee in the solemnized affidavit and in absence of any contrary fact or material on record, the assessee is found to have a “sufficient cause” for delay in filing present appeal as narrated above. We find that section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 9 of 12 there is a “sufficient cause” for not presenting appeal within prescribed time. It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice-oriented approach. 6. So far as merit of the case is concerned, we find that the assessee has admitted in Para 3 of affidavit that he is holding two PANs: CDSPR2994D and BOZPA9769J. The assessee has further admitted to have filed income- tax return of AY 2017-18 under consideration on 16.03.2018 in PAN: CDSPR2994D, the following document being acknowledgement of return is filed in Paper-Book according to which the assessee disclosed a total income of Rs. 3,04,290/- and paid tax liability of Rs. 470/- in PAN: CDSPR2994D: Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 10 of 12 Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 11 of 12 At the same time, the assessee also admits that he was holding his bank accounts in another PAN: BOZPA9769J. We also take note that the impugned assessment-order has been passed by AO in PAN: BOZPA9769J and the AO has only assessed the deposit in bank a/c without being aware of other PAN: CDSPR2994D held by assessee. Thus, the impugned addition of Rs. 12,56,000/- has been assessed in PAN: BOZPA9769J and the income of Rs. 3,04,290/- belonging to very same person/assessee has been separately assessed in PAN: CDSPR2994D. Since the assessee-individual is one and same, there cannot be piecemeal assessments, the ‘total income’ of assessee has to be assessed under the provisions of Income-tax Act, 1961. Further, the assessee has also filed a new evidence of bank-certificate as discussed earlier. Therefore, looking to all these aspects, the present case is fit for remand to the file of AO for a vehement adjudication. 7. We, however, note that the assessee has not participated before both of the lower-authorities due to which the lower authorities had to pass ex- parte orders. Further, the assessee has filed return in one PAN and claiming to hold bank a/cs in other PAN. Because of these lapses which are attributable to assessee, the present case has to be remanded to the file of AO for a fresh adjudication. Further, as noted earlier, there is a delay of about 1 year in filing present appeal. Therefore, taking into account these Avdesh ITA No. 802/Ind/2024 – AY 2017-18 Page 12 of 12 aspects, we are inclined to condone the delay and remand this matter to the file of AO subject to payment of a cost of Rs. 7,000/- by assessee to “Prime Minister National Relief Fund” and submission of proof before AO. Needless to mention that the AO shall give necessary opportunity of hearing to assessee and pass an appropriate order. The assessee is also directed to ensure participation in the hearings as may be fixed by AO and do not seek unnecessary adjournments failing which the AO shall be at liberty to pass appropriate order in accordance with law. Ordered accordingly. 8. Resultantly, this appeal is allowed for statistical purpose. Order pronounced in open court on 23/06/2025 Sd/- Sd/- (PARESH M. JOSHI) (B.M. BIYANI) JUDICIAL MEMBER ACCOUNTANT MEMBER Indore िदनांक/Dated : 23/06/2025 Patel/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order E COPYSr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore "