Shri Om Prakash Budhiraja , Manimajra V. ITO, W-3(4), Chandiarh

ITA 1557/CHANDI/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8171 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-01-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 06-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Keywords: Opportunity of being heard; Principle of natural justice; Peak credit; Period of limitation; Reasonable cause; Time period of passing order; Condonation of delay; Set aside
• Section: 142(1); 148; 144

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCHES, SMC CHANDIGARH (VIRTUAL COURT) .., ! BEFORE: SHRI. N.K.SAINI, VICE PRESIDENT ITA NO. 1557 /CHD/2019 ASSESSMENT YEAR : 2012-13 SHRI OM PRAKASH BUDHIRAJA C/O SH. TEJMOHAN SINGH, ADVOCATE # 527, SECTOR-10-D, CHANDIGARH THE ITO W-3(4), SECTOR-17 CHANDIGARH PAN NO: ABBPB3332N APPELLANT RESPONDENT !' ASSESSEE BY : SHRI TEJMOHAN SINGH, ADVOCATE #!' REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 04/01/2021 '()*! & DATE OF PRONOUNCEMENT : 04/01/2021 '#/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 11/07/2019 OF LD. CIT(A)-1, CHANDIGARH. 2. REGISTRY HAS POINTED OUT THAT THE APPEAL FILED B Y THE ASSESSEE IS BARRED BY LIMITATION BY 53 DAYS. THE ASSESSEE MOVED AN APPLIC ATION FOR CONDONATION OF DELAY STATING THEREIN AS UNDER: IN THE MATTER OF ITA NO. 1557/CHANDI/2019 RELATING TO THE ASSESSMENT YEAR 2012-13 FILED ON 6 TH OF DECEMBER,2019. APPLICATION FOR CONDONATION OF DELAY. RESPECTFULLY SUBMITTED AS UNDER:- 2 1. THAT THE ABOVE MENTIONED ASSESSEE RECEIVED THE O RDER OF COMMISSIONER OF INCOME TAX (APPEALS)-1, CHANDIGARH FOR THE ASSESSME NT YEAR 2012-13 AGAINST WHICH AN APPEAL WAS TO BE FILED BY 11.12.2019. 2. THAT THE APPEAL WAS FILED ON 06.12.2019 WHICH IS WI THIN THE LIMITATION PERIOD. 3. THAT THE PRESENT ADDRESS OF THE ASSESSEE IS # 1541, MORIGATE, MANIMAJRA. 4. THAT THE APPELLATE ORDER WAS SENT BY THE OFFICE OF THE COMMISSIONER OF INCOME TAX (APPEALS) AT # 1298, MORIGATE, MANIMAJRA WHERE THE ASSESSEE WAS EARLIER RESIDING. 5. THAT THE ASSESSEE WAS PROVIDED WITH THE ORDER OF TH E COMMISSIONER OF INCOME TAX (APPEALS) ON 12.10.2019 BY ONE OF THE TENANT SH . ARVIND KUMAR RESIDING AT #1541, MORIGATE, MANIMAJRA. 6. THAT THE ASSESSEE FILED THE APPEAL BEFORE THE HON'B LE BENCH WITHIN LIMITATION FROM THE DATE HE RECEIVED THE ORDER. 7. THAT THERE BEING NO MALA FIDE INTENTION OF NOT FILI NG THE APPEAL IN TIME, IT IS PRAYED THAT THE DELAY BE CONDONED. 8. THAT THE AFFIDAVIT OF THE ASSESSEE IS ENCLOSED H EREWITH. IT IS, THEREFORE, RESPECTFULLY PRAYED THAT THE DELA Y BE CONDONED THERE BEING A REASONABLE CAUSE AND IN THE IN INTEREST OF SUBSTANT IAL JUSTICE, THE APPEAL BE HEARD ON MERITS. SD/- (OM PARKASH BUDHIRAJA) THE ASSESSEE ALSO FILED AN AFFIDAVIT DT. 12/11/2020 IN SUPPORT OF THE AFORESAID CONTENTION WHICH IS PLACED ON RECORD. 3. DURING THE COURSE OF HEARING THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID APPLICATION AND SUBMI TTED THAT SINCE THE ORDER OF THE LD. CIT(A) WAS NOT RECEIVED BY THE ASSESSEE DUE TO CHANGE IN ADDRESS AND WHEN ONE OF THE TENANT RESIDING AT THE OLD ADDRESS OF THE ASSESSEE PROVIDED THE ORDER PASSED BY THE LD. CIT(A) THE ASSESSEE FILED T HE APPEAL SO THERE WAS NO MALAFIED INTENTION IN NOT FILING THE APPEAL WITH IN TIME AND THAT THE DELAY, IF ANY, 3 WAS BEYOND THE CONTROL OF THE ASSESSEE. HE REQUESTE D TO CONDONE THE DELAY IN FILING THE APPEAL. 4. IN HIS RIVAL SUBMISSIONS THE LD. DR OPPOSED THE CONDONATION OF DELAY IN FILING THE APPEAL. 5. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PA RTIES AND THE MATERIAL AVAILABLE ON THE RECORD, IT APPEARS THAT THE ASSESS EE COULD NOT RECEIVE THE COPY OF THE ORDER PASSED BY THE LD. CIT(A) DUE TO C HANGE IN HIS RESIDENTIAL ADDRESS AND WHEN THE COPY OF THE ORDER PASSED BY TH E LD. CIT(A) WAS PROVIDED TO THE ASSESSEE BY ONE OF THE TENANT RESIDING AT TH E EARLIER ADDRESS OF THE ASSESSEE, THE APPEAL WAS FILED. I THEREFORE BY CONS IDERING THE PECULIAR FACTS OF THIS CASE AND BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, CONDONE THE DELAY, IN FILING THE APPEAL AND APPEAL IS ADMITTED. 6. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1. THAT THE LD. COMMISSIONER OF INCOME TAX(APPEALS) HAS ERRED IN LAW AND FACTS IN DISMISSING THE APPEAL IN LIMINE ONLY ON TH E GROUND OF DELAY OF 21 DAYS IN FILING OF APPEAL IN UTTER DISREGARD OF THE EXPLANAT IONS FILED BEFORE HIM WHICH RENDERS THE ORDER ILLEGAL, ARBITRARY AND UNJUSTIFIE D. 2. WITHOUT PREJUDICE TO THE ABOVE, THE LD. COMMISSI ONER OF INCOME TAX (APPEALS) HAS ERRED IN UPHOLDING THE ADDITION OF RS . 19,93,000/- MADE BY APPLYING THE PEAK THEORY OF CASH DEPOSITS IN THE BA NK ACCOUNT WHICH IS ARBITRARY AND UNJUSTIFIED. 3. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF. 4. THAT THE ORDER OF THE LD. CIT(A) IS ERRONEOUS, A RBITRARY, OPPOSED TO THE FACTS OF THE CASE AND THUS UNTENABLE. FROM THE AFORESAID GROUNDS IT WOULD BE CLEAR THAT T HE GRIEVANCE OF THE ASSESSEE RELATES TO THE DISMISSAL OF THE APPEAL IN LIMINE BY THE LD. CIT(A). 7. THE FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. ON THE BASIS OF INFORMATION THAT THE ASSESSEE HAD DEPOSITED CASH AMOUNTING TO R S. 42,26,000/- IN HIS SAVING 4 BANK ACCOUNT MAINTAINED WITH VIJAY BANK, SCO NO. 37 , POCKET NO. 1, MANIMAJRA ISSUED NOTICE UNDER SECTION 148 OF THE ACT 1961 (HE REINAFTER REFERRED TO AS THE ACT) AND REOPENED THE ASSESSMENT. THE A.O. ALSO I SSUED NOTICE UNDER SECTION 142(1) OF THE ACT. HOWEVER WHEN THE CASE WAS FIXED BY THE A.O., THE ASSESSEE SOUGHT ADJOURNMENT AND FINALLY THE CASE WAS ADJOURN ED TO 22/12/2017 ASKING THE ASSESSEE TO FILE REPLY ALONGWITH DOCUMENTARY EV IDENCE FOR THE SOURCE OF CASH DEPOSITS IN HIS SAVING BANK ACCOUNT. ON THE SA ID DATE NOBODY APPEARED ON BEHALF OF THE ASSESSEE, THEREFORE THE ASSESSMENT WAS FRAMED UNDER SECTION 144 OF THE ACT BY MAKING THE ADDITION OF RS. 19,93, 000/- TO THE RETURNED INCOME OF RS. 1,74,430/-. ACCORDINGLY, THE INCOME WAS ASSE SSED AT RS. 21,67,430/-. 8. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISMISSED THE APPEAL IN LIMINE BY OBSERVING IN PARA 2.2 OF THE IMPUGNED ORDER AS UNDER: 2.2 HELD: THE APPEAL HAS TO BE FILED WITHIN THIRTY DAYS OF THE RECEIPT OF THE ORDER, WHICH IS CLEARLY MENTIONED IN THE DEMAND NOT ICE. APPEAL IS DELAYED BY 21 DAYS. LD. AR OF THE APPELLANT VIDE ORDER SHEET ENTR Y DATED 23/04/2019 WAS ASKED TO EXPLAIN THAT APPEAL IS DELAYED BY 21 DAYS. I DO NOT FIND ANY MERIT IN THE SUBMISSIONS OF THE APPELLANT THAT DUE TO THEFT IN T HE SHOP AND HIS ILLNESS HE COULD NOT FILE APPEAL WITHIN PRESCRIBED TIME. THE APPELLA NT HAS NOT SUBSTANTIATED HIS ASSERTION WITH ANY DOCUMENTARY EVIDENCE. AS SUCH NO THING HAS BEEN BROUGHT ON RECORD TO SHOW REASONABLE CAUSE FOR THE DELAY. 9. NOW THE ASSESSEE IS IN APPEAL. 10. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT(A) NEVER ASKED THE ASSESSEE TO FURNISH ANY DOCUMENTARY EVIDENCE BUT DI SMISSED THE APPEAL BY OBSERVING THAT THE ASSESSEE HAD NOT SUBSTANTIATED H IS ASSERTION WITH ANY DOCUMENTARY EVIDENCE. THE LD. COUNSEL FOR THE ASSES SEE ALSO FURNISHED AN APPLICATION FOR ADMISSION OF THE ADDITIONAL EVIDENC E WHICH IS THE REPORT IN NEWS PAPER AND A COPY OF THE FIR FILED WITH THE POLICE S TATION, MANI MAJRA ON 31/12/2017 IT WAS STATED THAT SINCE THERE WAS A THE FT IN THE SHOP OF THE ASSESSEE AND THE ASSESSEE WAS BUSY IN POLICE ENQUIRY WHICH L ED TO THE DELAY IN FILING THE 5 APPEAL. HOWEVER THE LD. CIT(A) DID NOT APPRECIATE T HE SAID FACT IN RIGHT PERSPECTIVE AND DISMISSED THE APPEAL IN LIMINE. IT WAS CONTENDED THAT THE ASSESSEE HAD ALL THE EVIDENCES TO SUPPORT THE CLAI M FOR DEPOSITING THE AMOUNT IN HIS SAVING BANK ACCOUNT, THEREFORE THE ADDITION MADE BY THE LD. CIT(A) WAS NOT JUSTIFIED. IT WAS REQUESTED THAT THE MATTER MAY BE SET ASIDE TO THE LD. CIT(A) TO BE ADJUDICATED AFTER PROVIDING DUE AND REASONABL E OPPORTUNITY OF BEING HEARD AND BY CONSIDERING THE EXPLANATION OF THE ASS ESSEE FOR DELAY IN FILING THE APPEAL. 11. IN HIS RIVAL SUBMISSIONS THE LD. SR. DR SUPPORT ED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND FURTHER SUBMITTED THAT THE AS SESSEE DID NOT APPEAR BEFORE THE A.O. THEREFORE THE ASSESSMENT WAS FRAMED EXPART E UNDER SECTION 144 OF THE ACT. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE COU LD NOT SUBSTANTIATE HIS ASSERTION WITH THE DOCUMENTARY EVIDENCE BEFORE THE LD. CIT(A) TO EXPLAIN THE DELAY IN FILING THE APPEAL THEREFORE, THE APPEAL WA S RIGHTLY DISMISSED BY THE LD. CIT(A) BY PASSING THE IMPUGNED ORDER, IN LIMINE. 12. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CA SE IT IS NOTICED THAT THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMI NE FOR THE REASONS THAT THERE WAS DELAY IN FILING THE APPEAL BEFORE HIM. IN THIS REGARD, THE EXPLANATION OF THE ASSESSEE IS THAT DUE TO THEFT IN HIS SHOP, HE REMAI NED BUSY IN POLICE ENQUIRY, IN SUPPORT OF HIS CLAIM HE FURNISHED THE ADDITIONAL EV IDENCES WHICH WERE NOT BEFORE THE LD. CIT(A). THE SAID EVIDENCES ARE A CUT TING OF THE NEWS PAPER WHEREIN THE NEWS RELATING TO THE THEFT IN THE SHOP OF THE ASSESSEE IS PUBLISHED AND THE COPY OF THE FIR. IT IS ALSO NOTICED THAT TH E LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE FOR THE REASONS TH AT THE ASSESSEE COULD NOT FURNISH ANY DOCUMENTARY EVIDENCE IN SUPPORT OF HIS CLAIM. IN THE PRESENT CASE, THE DELAY IN FILING THE APPEAL BEFORE THE LD. CIT(A ) OCCURRED DUE TO THE INVOLVEMENT OF THE ASSESSEE IN POLICE ENQUIRY RELAT ING TO THEFT IN HIS SHOP AND HIS 6 ILLNESS. I THEREFORE BY KEEPING IN VIEW THE AFORESA ID EXPLANATION OF THE ASSESSEE AND THE PRINCIPLE OF NATURAL JUSTICE DEEM IT APPROP RIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATE D AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND BY CONSIDERING THE EVIDENCE WHICH ARE FURNISHED BY THE ASSESSEE FIRST TIME BEFORE THIS BENCH OF THE ITAT. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 04/01/2021) SD/- .., ( N.K. SAINI) ! / VICE PRESIDENT AG DATE: 04/01/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE