HAR PRASHAD BHUTANI, Ghaziabad V. ITO WARD - 1(3), Ghaziabad

ITA 1522/DEL/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3672 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 31-08-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUSHIL ANTAL
• Keywords: Corroborative evidences; Competent authority; Condonation of delay
• Section: 142(1); 201; 147; 69; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI [THROUGH VIDEO CONFERENCING] BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA.NO.1522/DEL./2020 ASSESSMENT YEAR 2010-2011 SHRI HARPRASHAD BHUTANI, NEW BHUTANI AGENCY, BHUTANI BUILDING, MAIN MARKET, GOVINDPURI, MODINAGAR, GHAZIABAD. PIN 201 201. U.P. PAN AGKPB4684P VS. THE INCOME TAX OFFICER, WARD 1 (3), GHAZIABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SUSHIL ANTAL, ADVOCATE FOR REVENUE : SH. R.K. GUPTA, SR. DR DATE OF HEARING : 1 2. 1 0.2021 DATE OF PRONOUNCEMENT : 1 2. 1 0.2021 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE EX-PARTE ORDER DATED 22.08.2019 OF THE LD. CIT(A), GHAZIABAD, RELATING TO THE A.Y. 2010-2011. 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY THE ASSESSEE, HOWEVER, THESE ALL RELATE TO THE EX-PARTE ORDER OF THE LD. CIT(A) IN DISMISSING THE APPEAL FILED BY THE 2 ITA.NO.1522/DEL./2020 SHRI HARPARSHAD BHUTANI, GHAZIABAD. ASSESSEE FOR NON-PROSECUTION AND UNJUSTIFIABLE DELAY IN FILING OF THE APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL. AS PER THE AIR INFORMATION RECEIVED, THE ASSESSEE HAS DEPOSITED CASH OF RS.47 LAKHS IN HIS S.B. A/C DURING THE F.Y. 2009-10. TO VERIFY THE FINANCIAL TRANSACTION MADE BY THE ASSESSEE, THE A.O. ISSUED VERIFICATION LETTERS DATED 11.01.2017 AND 03.03.2017. HOWEVER, THERE WAS NO COMPLIANCE TO THE SAID VERIFICATION LETTERS. THEREFORE, THE A.O. BY INVOKING THE PROVISIONS OF SECTION 147 OF THE INCOME TAX ACT, 1961, REOPENED THE ASSESSMENT AFTER OBTAINING NECESSARY APPROVAL FROM THE COMPETENT AUTHORITY AND ISSUED NOTICE UNDER SECTION 148 OF THE I.T. ACT, 1961 DATED 29.03.2017. THE ASSESSEE DID NOT FILE ANY REPLY IN RESPONSE TO THE SAID NOTICE UNDER SECTION 148 OF THE ACT. THE A.O, THEREFORE, ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT DATED 20.04.2017 ALONG WITH SPECIFIC QUESTIONNAIRE FIXING THE CASE FOR HEARING ON 02.05.2017. SINCE, THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE, THE A.O. PROCEEDED TO COMPLETE THE ASSESSMENT UNDER SECTION 144 OF 3 ITA.NO.1522/DEL./2020 SHRI HARPARSHAD BHUTANI, GHAZIABAD. THE I.T. ACT, 1961. HE OBSERVED THAT THE ASSESSEE FILED RETURN OF INCOME ON 12.03.2011 DECLARING INCOME OF RS.1,62,260/-. THE ASSESSEE HIMSELF APPEARED BEFORE THE A.O. AND FILED COPY OF BANK STATEMENT ONLY. FURTHER, THE ASSESSEE DID NOT APPEAR THEREAFTER TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN HIS S.B. A/C ALONG WITH SUPPORTING EVIDENCE. THE A.O, THEREFORE, COMPLETED THE ASSESSMENT UNDER SECTION 144/147 OF THE I.T. ACT, 1961 AND DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS.48,62,260/- BY MAKING AN ADDITION OF RS.47 LAKHS UNDER SECTION 69 OF THE I.T. ACT, 1961. 3.1. SINCE THERE WAS A DELAY IN FILING OF THE APPEAL BY MORE THAN 04 MONTHS AND DESPITE ISSUE OF NOTICE FROM THE O/O. LD. CIT(A) TO SUBSTANTIATE THE REASONS FOR DELAY IN FILING OF THE APPEAL AS PER THE FACTS STATED IN FORM NO.35, THE LD. CIT(A) DID NOT CONDONE THE DELAY AND TREATED THE APPEAL AS NON-EST BEING DEFECTIVE AND DISMISSED THE APPEAL OF ASSESSEE IN LIMINE. 4. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4 ITA.NO.1522/DEL./2020 SHRI HARPARSHAD BHUTANI, GHAZIABAD. 4.1. THERE IS A DELAY OF 209 DAYS IN FILING OF THE APPEAL BEFORE THE TRIBUNAL FOR WHICH THE ASSESSEE HAS FILED AN APPLICATION ALONG WITH AN AFFIDAVIT SEEKING FOR CONDONATION OF DELAY. LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO THE CONDONATION APPLICATION FILED ALONG WITH THE AFFIDAVIT OF THE ASSESSEE STATED THAT THE ASSESSEE IS 74 YEARS OLD AND IS SUFFERING FROM VARIOUS OLD AGE RELATED MEDICAL AND HEALTH ISSUES LIKE ISCHEMIC HEART DISEASES WITH POOR CARDIAC FUNCTION, PERIPHERAL NEUROPATHY, PROSTATE, DIABETES AND ERRATIC HIGH BLOOD PRESSURE, FOR WHICH, HE WAS UNDER CONSTANT MEDICATION. SINCE THE ASSESSEE WAS ADVISED COMPLETE BED REST BY THE DOCTOR DUE TO HIS POOR HEALTH, THE ASSESSEE COULD NOT FILE THE APPEAL INTIME. REFERRING TO THE VARIOUS DECISIONS, HE SUBMITTED THAT THE DELAY IN FILING OF THE APPEAL BEFORE THE TRIBUNAL SHOULD BE CONDONED. 5. AFTER HEARING BOTH THE SIDES, I CONDONE THE DELAY IN FILING OF THE APPEAL OF THE ASSESSEE BEFORE THE TRIBUNAL AND THE APPEAL IS ADMITTED FOR ADJUDICATION. 6. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS A DELAY OF MORE THAN 04 MONTHS IN FILING OF THE 5 ITA.NO.1522/DEL./2020 SHRI HARPARSHAD BHUTANI, GHAZIABAD. APPEAL BEFORE THE TRIBUNAL. HE SUBMITTED THAT AS EXPLAINED EARLIER THE ASSESSEE IS A SENIOR CITIZEN AND IS SUFFERING FROM VARIOUS DISEASES FOR WHICH THE APPEAL COULD NOT BE FILED IN TIME. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE AND IN VIEW OF THE DECISIONS ALREADY CITED EARLIER FOR CONDONATION OF DELAY IN FILING OF APPEAL BEFORE THE TRIBUNAL, THE DELAY IN FILING OF THE APPEAL BEFORE THE LD. CIT(A) SHOULD BE CONDONED AND THE APPEAL BE HEARD ON MERIT. 7. THE LD. D.R. ON THE OTHER HAND STRONGLY OPPOSED THE ARGUMENTS ADVANCED BY THE ASSESSEE AND SUBMITTED THAT THE ASSESSEE IS NOT SERIOUS IN PROSECUTING THE APPEAL FILED BY HIM. FURTHER, THERE WAS NO RESPONSE BEFORE THE A.O. ALSO FOR WHICH HE WAS CONSTRAINED TO PASS THE EX-PARTE ORDER. HE ACCORDINGLY SUBMITTED THAT THE ADDITION MADE BY THE A.O. SHOULD BE UPHELD. 8. I HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE RECORD. I FIND THE ASSESSEE IN THE INSTANT CASE HAS MADE CASH DEPOSIT OF RS.47 LAKHS IN THE S.B. A/C MAINTAINED BY HIM. DESPITE VERIFICATION LETTERS ISSUED BY THE A.O. THERE WAS NO RESPONSE FROM THE SIDE OF 6 ITA.NO.1522/DEL./2020 SHRI HARPARSHAD BHUTANI, GHAZIABAD. THE ASSESSEE FOR WHICH THE A.O. REOPENED THE ASSESSMENT UNDER SECTION 147 OF THE I.T. ACT, 1961 AND ISSUED NOTICE UNDER SECTION 148 OF THE I.T. ACT, 1961. I FIND DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE APART FROM FILING HIS BANK STATEMENT DID NOT APPEAR BEFORE THE A.O. TO EXPLAIN THE SOURCE OF HUGE CASH OF RS.47 LAKHS DEPOSITED IN HIS S.B. A/C FOR WHICH THE A.O. WAS CONSTRAINED TO PASS THE ASSESSMENT ORDER UNDER SECTION 144/147 OF THE I.T. ACT, 1961 AND MADE ADDITION OF THE SAME. SINCE THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) WAS DELAYED BY MORE THAN 04 MONTHS, THE LD. CIT(A) HELD THE APPEAL AS NON-EST AND DEFECTIVE SINCE THE ASSESSEE DID NOT BOTHER TO EXPLAIN THE REASONS FOR DELAY IN FILING OF THE APPEAL BEFORE HIM. THE LD. CIT(A), THEREFORE, DISMISSED THE APPEAL OF ASSESSEE IN LIMINE. IT IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE DELAY IN FILING OF THE APPEAL BEFORE THE LD. CIT(A) IS NOT INTENTIONAL, BUT, DUE TO BAD HEALTH CONDITION OF THE ASSESSEE WHO IS A SENIOR CITIZEN. IT IS HIS SUBMISSION THAT DELAY IN FILING OF THE APPEAL BEFORE THE LD. CIT(A) SHOULD BE CONDONED AND THE APPEAL SHOULD BE HEARD ON MERIT. 7 ITA.NO.1522/DEL./2020 SHRI HARPARSHAD BHUTANI, GHAZIABAD. 8.1. THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS., MST. KATIJI & ORS., REPORTED IN [1987] 167 ITR 471 (SC) OBSERVED THAT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. THE HONBLE SUPREME COURT WHILE CONDONING THE DELAY HAS LAID DOWN THE FOLLOWING GUIDELINES : 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE DELAY CAN RESULT IN A MERITORIOUS MATTER BEING THROWN OUT AT THE VERY THRESHOLD AND CAUSE OF JUSTICE BEING DEFEATED. AS AGAINST THIS WHEN DELAY IS CONDONED THE HIGHEST THAT CAN HAPPEN IS THAT A CAUSE WOULD BE DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. 8 ITA.NO.1522/DEL./2020 SHRI HARPARSHAD BHUTANI, GHAZIABAD. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJUSTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 8.2. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE AND 9 ITA.NO.1522/DEL./2020 SHRI HARPARSHAD BHUTANI, GHAZIABAD. IN VIEW OF JUDGMENT OF HONBLE SUPREME COURT CITED (SUPRA), I DIRECT THE LD. CIT(A) TO CONDONE THE DELAY OF 04 MONTHS IN FILING THE APPEAL BEFORE HIM AND DECIDE THE ISSUE ON MERIT BY ADMITTING THE APPEAL. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE LD. CIT(A) AND SUBSTANTIATE HIS CASE WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT, FAILING WHICH, THE LD. CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDERS AS PER LAW. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E., ON 12.10.2021. SD/ - (R.K. PANDA) ACCOUNTANT MEMBER DELHI, DATED 12 TH OCTOBER, 2021 VBP/- 10 ITA.NO.1522/DEL./2020 SHRI HARPARSHAD BHUTANI, GHAZIABAD. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.