Samad Mohammed Abdul, Hyderabad V. Income Tax Officer, Ward-7(1), Hyderabad

ITA 1070/Hyd/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 9617 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 06-01-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 01-07-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: N NARMADA
• Assessee Lawyers: M V ANIL KUMAR
• Keywords: Unexplained cash credit; Condonation of delay
• Section: 271(1)(c); 143(3); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD SMC - B BENCH : HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NO. 10 7 0 /HYD./201 9 ASSESSMENT YEAR: 2013 - 14 SHRI SAM AD MOHAMMED ABDUL VS. ITO, WARD 7 ( 1 ) SECUNDERABAD 500 003 HYDERABAD PAN: AO SPM8778F (APPELLANT) (RESPONDENT) FOR ASSESSE E : S H. M.V. ANIL KUMAR, A.R. FOR REVENUE : S MT. N. NARMADA, D.R. DATE OF HEARING : 06 / 01 / 2020 DATE OF PRONOUNCEMENT : 08 / 01 / 2020 O R D E R THIS IS ASSESSEES APPEAL FOR A.Y. 2013 - 14 AGAINST THE ORDER S S OF THE LD.CIT(A) - 9 , HYDERABAD DATED 14.05.2019 DISMISSING ASSESSEES APPEAL BY NOT CONDONING THE DELAY OF 523 DAYS IN FILING OF THE APPEAL ELECTRONICALLY AND ALSO AGAINST THE CONFIRMATION OF THE AOS ORDER. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, AN INDIVIDUAL, FILED HIS RETURN OF INCOME FOR THE RELEVANT A.Y. ON 04.04.2014 DECLARING TOTAL INCOME OF RS.3,22,240/ - . DURING THE ASSESSMENT PROCEEDINGS U/S 143(3) OF THE I.T. A CT, 1961 (THE ACT) , THE AO FOUND THAT THERE W ERE CASH DEPOSITS IN THE BANK STATEMENTS. SIN CE THE ASSESSEE COULD NOT EXPLAIN THE SOURCES OF THESE CASH DEPOSITS AGGREGATING TO RS.8,61,025/ - , THE AO ADDED THE SAME TO THE RETURNED INCOME OF THE ASSESSEE AS UNEXPLAINED CASH CREDIT S AND THE ASSESSEE ALSO AGREED TO THE SAID ADDITION. 2.1. THEREAFTER , PENALTY PROCEEDINGS U/S 271(1)(C ) OF THE ACT WERE INITIATED BY ISSUANCE OF NOTICE U/S 271(1)(C ) OF THE ACT ON 30.03.2016. SINCE THERE WAS NO RESPONSE FROM THE ASSESSEE THE AO LEVIED MINIMUM PENALTY OF RS.2,04,956/ - AND AGGRIEVED, THE ASSESSE E FILED AN APPEAL BEFORE THE CIT(A) ITA NO. 1070/HYD/19 AY 2013 - 14 SH. SAMAD MOHAMMED ABDUL, SEC. 2 MANUALLY ON 29.10.2016 I.E. WITHIN THE TIME ALLOWED UNDER THE ACT. HOWEVER, SUBSEQUENTLY WHEN THE ASSESSEE CAME TO KNOW THAT THE APPEAL HAS TO BE FILED ELECTRONICALLY , HE FILED IT ON 29.05.2016 ALONG WITH AN APPLICATION FOR CONDONATION OF DELAY OF 523 DAYS IN FILING THE APPEAL ELECTRONICALLY. THE CIT(A) OBSERVED THAT THE ASSESSEE HAS NOT FILED ANY AFFIDAVIT, NOR IS THERE ANY PROOF TO SUBSTANTIATE THE CLAIM TO CONDONE THE DELAY, THE CIT(A) , THUS, DID NOT ADMIT THE AP PEAL . REGARDING MERITS OF THE LEVY OF PENALTY ALSO THE CIT(A ) OBSERVED THAT THE ASSESSEE HAS NOT FI LED ANY REPLY BEFORE THE AO AGAINST THE LEVY OF PENALTY NOR HAS ANY DETAILS BEEN FILED BEFORE THE CIT(A), AND, THEREFORE, HE CONFIRMED THE PENALTY. 3. A SSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS OF APPEAL. 1. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE ADDITION TO THE RETURNED INCOME WAS ON AGREED BASIS AND HENCE, PENALTY U/S 271(1)(C) IS NOT WARRANTED. 2. THE ASSESSING OFFICER AND CIT(A) OUGHT TO HAVE CONSIDERED THE WELL ESTABLISHED JURIS PRUDENCE THAT PENALTY CANNOT BE IMPOSED ON AN ADDITION MADE ON AN ESTIMATED BASIS AND THEREFORE THE PENALTY IS BAD IN LAW. 3. YOUR APPELLANT SUBMITS THAT THE NOTICE U/S 271(1 (C) DOES NOT SPECIFY THE CHARGE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME, HENCE, THE IMPOSITION OF PENALTY IS BAD IN LAW. 4. YOUR APPELLANT SUBMITS THAT THE CIT(A) OUGHT TO HAVE ACCEPTED THE APPEAL FILED MANUALLY AS THE SAME WAS FILED IN TIME AND CONDONED THE DELAY WITH RESPECT TO THE APPEAL FILED ELECTRONICALLY. 5. YOUR APPELLANT SUBMITS THAT THE ASSESSSING OFFICER AS WELL AS THE CIT(A) ERRED IN LAW AND FACTS OF THE CASE IN LEVY ING PENALTY U/S 271(1)(C) WITHOUT APPRECIATING THE FACT THAT PENALTY PROCEEDINGS ARE INDEPENDENT FROM ASSESSMENT PROCEEDINGS AND MERE ADDITION IN ASSESSMENT PROCEEDINGS DOES NOT GIVE RISE TO PENALTY. 6. YOUR APPELLANT SUBMITS THAT IN THE ASSESSMENT ORDER THERE IS NO FINDING AS TO CONCEALMENT OF INCOME OR FURNISHING OF INACCURATE PARTICULARS, IN ABSENCE OF WHICH, LEVY OF PENALTY IS BAD IN LAW. 7. FOR THESE GROUNDS AND SUCH GROUNDS AS MAY BE URGED AT THE TIME OF HEARING, YOUR APPELLANT PRAYS THAT THE PENALTY U/S 271(1)(C ) MAY BE DELETED. 4. HEARD BOTH THE PARTIES. 5 . HAVING REGARD TO THE RIVAL CONTENTIONS AND MATERIAL PLACED ON RECORD, I FIND THAT THE SINCE NONE APPEARED BEFORE THE AO, MINIMUM PENALTY WAS LEVIED BY THE AO . BEFORE THE CIT(A) , I FIND THAT THE APPEAL HAS BEEN FILED MANUALLY WITHIN TIME. THE DELAY IS ONLY IN FILING OF THE APPEAL ELECTRONICALLY. THE ASSESSEE HAS EXPLAINED THE REASON THAT HE WAS NOT AWARE THAT THE APPEAL ITA NO. 1070/HYD/19 AY 2013 - 14 SH. SAMAD MOHAMMED ABDUL, SEC. 3 HAS TO BE FILED ELECTRONICALLY AND ON COMING TO KNOW HE I MMEDIATELY FILED THE APPEAL WHICH HAS RESULTED IN A DELAY OF 523 DAYS. I FIND THAT THE REASON GIVEN BY THE ASSESSEE IS REASONABLE AND JUSTIFIABLE TO CONDONE THE DELAY. THE FACT THAT ASSESSEE HAS FILED APPEAL MANUALLY WITHIN THE TIME ITSELF , PROVES THE B ONAFIDES OF THE ASSESSEE. HAD HE KNOWN THAT THE APPEAL HAS TO BE FILED ELECTR ONI CALLY, HE WOULD HAVE FILED IT ELECTRONICALLY WITHIN TIME. THEREFORE, THE CIT(A)S REASON FOR REJECTING THE A PPLICATION FOR CONDONATION OF DELAY IS NOT SUSTAINABLE. THEREFORE , I CONDONE THE DELAY OF 523 DAYS IN FILING OF THE APPEAL BEFORE THE CIT(A) , AND DIRECT THE CIT(A) TO DECIDE THE APPEAL ON MERITS AFTER GIVING THE ASSESSEE A FAIR OPPORTUNITY OF HEARING. 6. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON 08 TH JANUARY, 2020 . SD/ - (P MADHAVI DEVI) JUDICIAL MEMBER DATED: THE 08 TH JANUARY, 2020 . *GMV COPY FORWARDED TO: 1. SRI SAM AD MOHAMMED ABDUL C/O M.ANANDAM & CO. CAS, FLAT NO.7A, SURYA TOWERS, S.P.ROAD, SECUNDE RABAD 500 003 . 2. ITO, WARD 7 ( 1 ), HYDERABAD 3. CIT(A) - 9 , HYDERABAD 4. THE PR.CIT - 3 , HYDERABAD 5 . D.R. ITAT HYDERABAD 6 . GUARD FILE // C O P Y // ITA NO. 1070/HYD/19 AY 2013 - 14 SH. SAMAD MOHAMMED ABDUL, SEC. 4 1. DRAFT DICTATED ON 06/01/20 2. DRAFT PLACED BEFORE THE AUTHOR 07/01/20 3. DRAFT PLACED BEFORE THE SECOND MEMBER 4. DRAFT APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO SRPS 6. KEPT FOR PRONOUNCEMENT 7. FILE SENT TO BENCH CLERK