Bal Krishna Chauhan, Mau V. ITO, Ward - 3(1), Azamgarh

ITA 14/VNS/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 9156 (ITAT-VARANASI)
• Duration Of Justice: 1 year(s) 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 07-04-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Opportunity of being heard; Principle of natural justice; Bonafide belief; Reasonable cause; Set aside
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT ‘SMC’ BENCH, VARANASI BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER ITA No.14/VNS/2021 Assessment Year: 2010-11 Bal Krishna Chauhan, Mohammadabad Gohna Mohalla, Jamalpur Mau-276403 PAN-AKRPC5880F v. Income Tax Officer, Ward-3(1), Azamgarh (Appellant) (Respondent) Appellant by: Sh. Ashish Bansal, Advocate Respondent by: Sh. A.K. Singh, Sr. D.R. Date of hearing: 06.07.2022 Date of pronouncement: 08.07.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 09.12.2019 of CIT(A) for the assessment year 2010-11. 2. There is a delay of 425 days’ in filing the present appeal. The assessee has filed an application for condonation of delay. The ld. AR of the assessee has submitted that during the pendency of the appeal before the CIT(A), the assessee opted for Vivad Se Vishwas Scheme, 2020. However, the said application filed by the assessee was rejected by the Designated Authority on 2.3.2021 on the ground that the appeal of the assessee was already disposed of vide order dated 9.12.2019. Thus the learned AR has submitted that the assessee came to know about the impugned order of the CIT(A), whereby the appeal of the assessee was dismissed in limine for want of prosecution only when the application of the assessee filed under Vivad Se Vishwas Scheme, 2020 was rejected on 2.3.2021. Immediately, thereafter, the assessee took the steps and filed the present appeal. The ld. AR has submitted that by that time, the time allowed for opting for Vivad Se Vishwas Scheme, 2020 was also expired. He has further submitted that the ITA No.14 /VNS/2021 Bal Krishna Chauhan 2 impugned order of the CIT(A) was not received by the assessee as the said order was sent through email at the email ID of a person who had registered the PAN of the assessee on the Income Tax web portal. Thus the learned AR has pleaded that the delay in filing the present appeal is neither intentional nor deliberate but due to unavoidable circumstances as the assessee initially opted for Vivad Se Vishwas Scheme, 2020 under the impression that the appeal filed by the assessee before the CIT(A) was still pending. 3. On the other hand, the learned DR has objected to the condonation of delay and submitted that it is an inordinate delay in filing the appeal and the assessee has not explained the sufficient cause for condonation of delay. 4. I have considered the rival submissions as well as relevant material on record. The assessee has explained the cause of delay that he opted for Vivad Se Vishwas Scheme, 2020 to settle the tax dispute by filing the declaration in Form Nos. 1 and 2 on 31 st January, 2021 as on that date, the assessee was not aware about the impugned order of the CIT(A) dated 9.12.2019, whereby the appeal of the assessee was dismissed ex parte for non prosecution. The assessee came to know about the impugned order only when the application / declaration filed under Vivad Se Vishwas Scheme, 2020 was rejected by the concerned authority on 2.3.2021 on the ground that the appeal of the assessee was already stand disposed of by the CIT(A), vide order dated 9.12.2019. The assessee has also explained the reason for not receiving the impugned order as the same was sent on the email ID available in the Income Tax web portal not of the assessee but of the tax practitioner who registered the PAN of the assessee. All these factual aspects are not disputed by the Revenue that the assessee opted for Vivad Se Vishwas Scheme, 2020 by filing the declaration on 31.1.2021 and the application of the assessee was rejected on 2.3.2021. Therefore, I am satisfied that the ITA No.14 /VNS/2021 Bal Krishna Chauhan 3 assessee was having a sufficient cause for not filing the appeal within the period of limitation. Accordingly, the delay in filing the present appeal is condoned. 5. The assessee has raised the grounds of appeal:- “1. BECAUSE the assessment proceedings under section 147 of the Act initiated by the "Income Tax Officer, Ward—3(1), Azamgarh" with the issuance of notice under section 148, dated 31.03.2017, against the "appellant" is void-ab-initio as the jurisdiction of the "appellant" always vest with the "Income Tax Officer, Ward — 3(4), Mau", accordingly the assessment order dated 18.12.2017 passed by "Income Tax Officer, Ward—3(1), Azamgarh" is without jurisdiction. 2. BECAUSE the residential address of the appellant is "Mohammadabad Gohna, Mohalla Jamalpur, Mau" and not "Jamalpur Roadways, Azamgarh" as noted by the "Income Tax Officer, Ward—3(1), Azamgarh" in the assessment order dated 18.12.2017, both being in two different districts, the initiation as also conclusion of the proceedings under section 147 of the Act by the "Income Tax Officer, Ward— 3(1), Azamgarh" on the basis wrong `situs' is wholly invalid and void. 3. BECAUSE the CIT(A) has erred in law and on facts in upholding the proceedings that had been initiated under section 147 of the Act by the "Income Tax Officer, Ward—3(1), Azamgarh", as the same had been initiated merely on the basis of deposits in his regular bank account and no `material' of adverse nature having been found against the appellant. 4. BECAUSE merely deposits in bank account does not constitute the reason to belief so as to invoke jurisdiction under section 147 of the Act. 5. BECAUSE the proceedings under section 147 had neither been validly initiated nor concluded in accordance with law, accordingly the assessment order dated 18.12.2017 is erroneous and bad. 6. BECAUSE the appellant was prevented by reasonable cause in not attending the appellate proceedings before the CIT(A), as he had handed over all the notices received by him to his authorized representative which were never attended by him and the appellant was always under a bonafide belief and impression that his authorized representative was duly attending the same and representing my case before the CIT(A), so the ex-parte appellate order dated 09.12.2019 passed by CIT(A) merely for the reason of non- compliance is bad, as due to lack of effective and proper opportunity of being heard having been given to the appellant. WITHOUT PREJUDICE TO THE AFORESAID 7. BECAUSE the deposits in bank account having been fully explained by the appellant being deposits made out of a) gifts aggregating to Rs.13,70,000/- received from 'relatives' and gift deed in support of the same were duly furnished; b) accumulated balances of savings of earlier years aggregating to Rs.2,30,600/-; ITA No.14 /VNS/2021 Bal Krishna Chauhan 4 addition of Rs.16,00,600/- made in the hands of the appellant is wholly incorrect and bad. 8. BECAUSE the appellant had duly disclosed the source of deposits in his bank account, he is not required to explain source of the source of the said deposits, accordingly the addition of Rs.16,00,600/- made by the "Income Tax Officer, Ward- 3(1), Azamgarh" in the assessment order dated 18.12.2017 as also confirmed by the CIT(A) in the impugned appellate order dated 09.12.2019 is wholly erroneous and bad. 9. BECAUSE the order appealed against is contrary to the facts, law and principles of natural justice.” 6. At the outset, the learned AR of the assessee has submitted that the CIT(A) has dismissed the appeal of the assessee in limine for non prosecution without deciding the grounds on merits. He has further submitted that since the relevant record could not be furnished before the AO due to paucity of time, therefore, the matter may be set aside to the record of the AO for deciding the same afresh, after giving one more opportunity of hearing to the assessee. 7. On the other hand, the learned DR has fairly submitted that the CIT(A) has not decided the appeal of the assessee on merits therefore, it may be remanded to the record of the CIT(A) for deciding the same on merits. 8. I have considered the rival submissions as well as relevant material on record. Undisputedly, the CIT(A) has dismissed the appeal of the assessee for non prosecution and without going into the merits of the issues raised by the assessee. The relevant finding of the CIT(A) is as under:- “5. The aforesaid non-compliance on part of appellant reveals beyond doubt that appellant has nothing to say in the matter of this appeal. It can be concluded that appellant is not interested in prosecution of the present appeal and same is liable to be dismissed on this ground itself. The law assists those who are vigilant and not those who sleep over their rights. This principle is embodied in well known dictum “VIGILANTIBUS, NON DORMENTIBUS, JURA SUBVENIUNT”. In view of the above mentioned facts and by placing reliance on decision of Hon'ble ITAT, Delhi Bench in case of CIT vs. Multiplan India Ltd. reported in 38 ITD 320 and decision of Hon'ble M.P. High Court in case of Estate of Late TukojiRaoHolkar vs. CWT (1997) reported in 223 ITR 480 the present appeal is liable to be dismissed.” ITA No.14 /VNS/2021 Bal Krishna Chauhan 5 9. Thus, it is clear that the impugned order of the CIT(A) for not deciding the appeal on merit is contrary to provisions of section 250(6) of the Income Tax Act and hence liable to be set aside. Accordingly, in the facts and circumstances of the case and in the interest of justice, the impugned order of the CIT(A) is set aside and the matter is remanded to the record of the CIT(A) for deciding the same afresh after giving one more opportunity of hearing to the assessee. 10. In the result, the appeal of the assessee is allowed. Order pronounced in the open Court on 08.07.2022. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED:08/07/2022 Varanasi Sh Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A),Varanasi 4. CIT 5. DR By order Sr. P.S.