Mohansingh Khumansingh Vasadiya, Surat V. Income TAx Officer, Wd.1(5), Bharuch

ITA 173/SRT/2021

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6457 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-05-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 30-09-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Set aside
• Section: 68; 148; 144; 142(1); 250; 69A; 139(1)

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER & SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.173/SRT/2021 AY: (2011-12) (Physical Court Hearing) Mohansingh Khumansingh Vasvadiya ABrahman Faliyu, ERayama Hansot, Bharuch-393030 Vs. Income Tax Officer Ward-1(5), Bharuch, 1 st Floor, Harikunj Building, Above Bank of Baroda, Station Road, Bharuch-392001 èथायीलेखासं./जीआइआरसं./PAN/GIR No: ABEPV 7928 D (अपीलाथŎ/Appellant) (ŮȑथŎ /Respondent) िनधाŊįरती की ओर से /Assessee by Ms. Chaitali Shah, CA राजˢ की ओर से /Revenue by Shri J.K.Chandnani, Sr-DR सुनवाई की तारीख/Date of Hearing 27/05/2024 उद्घोषणा की तारीख/Date of Pronouncement 18/06/2024 आदेश / O R D E R PER BIJAYANANDA PRUSETH, AM: This appeal by the assessee emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’) by the Learned Commissioner of Income Tax (Appeals) / National Faceless Appeal Centre, Delhi [in short, ‘CIT(A)], vide order dated 29.07.2021 for assessment year (AY) 2011-12. Grounds of appeal raised by the assessee are as under: “1. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of Assessing Officer in reopening the assessment/s 147 by issuing notice u/s 148. 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of Assessing Officer in making addition of Rs.24,00,000/- on account of unexplained money u/s 69A of the t being cash deposited in the bank account of the assessee. 2 ITA No.173/SRT/2021 /AY. 11-12 Mohansingh K Vasvadiya 3. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of Assessing Officer in making addition of Rs.39,206/- on account of unexplained money being 10% of the amount credited to bank account of assessee. 4. It is therefore prayed that the assessment may please be quashed and/or addition made by the Assessing Officer and confirmed by CIT(A) may please be deleted. 5. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.” 2. Perusal of record shows that there is delay of 4 days in filing appeal before Tribunal. The assessee has filed an application giving reasons for delay in filing of appeal before the Tribunal. In the application, it has been stated that Ld. Counsel Shri Ashok Chevli, CA communicated the order of Ld.CIT(A) and other details for ready reference of appeal memo. through e-mail on 23.09.2021. The assessee resides in a village away from Bharuch and signed documents were not received till 01.10.2021. The Ld. Authorized Representative (Ld.AR) has requested to condone the delay in filing appeal in the interest of justice. The Ld.AR submitted that short delay of 4 days was caused for preparation of appeal and it was neither deliberate nor intentional. 3. On the other hand, Learned Departmental-Representative (Ld.CIT-DR) for the Revenue has not opposed the delay in filing appeal before the Tribunal. 4. We have considered the reasons given by the Ld. AR and perused the accompanied application. We find that the delay of 4 days in filing appeal was not deliberate and intentional on the part of assesse. Therefore, considering 3 ITA No.173/SRT/2021 /AY. 11-12 Mohansingh K Vasvadiya the fact that assessee is not going to benefitted by filing appeal belatedly and further considering the fact that when technical consideration and cause of substantial justice are pitted against each other, the cause of substantial justice may be preferred, the delay in filing the appeal is condoned. Let us discuss the merit of the case. 5. The facts of the case in brief are that the assessee did not file his return of income (in short, “ROI”) for AY 2011-12. As per details available with AO, the assessee had deposited cash of Rs.24,00,000/- in his bank account maintained with Bharuch District Central Co-operative Bank Ltd. during the FY 2010-11. After obtaining approval of the Ld.PCIT, Vadodara, the AO issued notice u/s 148 of the Act on 19.01.2018, which was duly served on the assesse. The assessee did not file any ROI in response to notice u/s 148 of the Act. Subsequently, the AO issued u/s 142(1) on 09.07.2018, 03.10.2018, 19.11.2018 and 16.10.2018. However, assessee neither furnished any reply nor requested for any adjournment in response to above notices. Therefore, AO proceeded to make assessment u/s 144 of the Act on best judgment based on material available on record. After obtaining the bank statement bearing a/c No.SB- 1905 from Bharuch Dist. Central Co-Operative Bank Ltd., the AO added cash deposit of Rs.24,00,000/- u/s 69A of the Act. He further found that there was a credit entry of Rs.3,92,063/-.He added Rs.39,206 being 10% of Rs.3,92,063/- to plug the interest of revenue. The AO also added Rs.2,173/- being interest on 4 ITA No.173/SRT/2021 /AY. 11-12 Mohansingh K Vasvadiya savings bank account. Therefore, the total income was determined at Rs.24,41,380/-. 6. Aggrieved by this order of the AO, the assessee filed appeal before Ld.CIT(A). The assessee raised the issue of reopening and addition of Rs.24,00,000/- and Rs.39,206/- before Ld.CIT(A). The reply of the assessee has been reproduced at para-5.1 of the appellate order. The appellant filed request for adjournment vide letters dated 23.07.2019, 06.08.2019 and 18.09.2019. The assessee thereafter did not file any submission till passing the order of Ld.CIT(A) on 29.07.2021. Therefore, Ld.CIT(A) decided the appeal on the basis of assessment order, statement of facts and the grounds of appeal. The appellant had relied on the decisions of this co-ordinate Bench in the case of Ashish Natvarlal Vashi vs. ITO in ITA No.352/AHD/2016 and in case of Ajity N. Patel vs. ITO in ITA No.s.209-212 and 230-233/SRT/2018 in support of the ground of validity of reopening. The Ld. CIT(A) held that the facts of the case are not applicable to the case of the appellant because assessee has not filed his ROI. On merits, Ld.CIT(A) relied on the decision of ITAT Bengalureu in ITA No.3135/Bang/2018 dated 20.09.2019. Since the appellant had not filed any evidence or explanation to explain the cash deposit, the Ld. CIT(A) confirmed the action of AO u/s 68 of the Act. Aggrieved, the assessee has filed present appeal before Tribunal. 7. The Ld. AR of the assessee has contested the addition both on jurisdictional ground as well as on merit. He has filed two paper books, 5 ITA No.173/SRT/2021 /AY. 11-12 Mohansingh K Vasvadiya containing the factual details as well as case laws. In the 1 st paper book, there are seven items; out of which, 4 items at Sl.Nos.4-7 are filed before Tribunal for the first time. The other paper book contains various case laws on validity of reopening of assessment and merits of addition of Rs.24,00,000/- on account of unexplained money u/ 69A of the Act. 8. On the other hand, Ld. Sr-DR for the Revenue supported the orders of authorities below. 9. We have heard the rival submissions and perused the materials on record. Before us, Ld.AR has challenged the reopening as well as merits of the addition. It is seen from the assessment order as well as order of Ld.CIT(A) that assesse was non-compliant to various notices issued by the lower authorities. We find that assessee had not filed his ROI for AY 2011-12 u/s 139(1) of the Act or in response to notice issued by AO u/s 148 of the Act. The AO had issued notice u/s 148 and thereafter four notices on 09.07.2018, 03.10.2018, 16.10.2018 and 19.11.2018. The assessee neither furnished any reply nor any explanation in response to the notice issued to the assessee. We also find that the assessee, apart from making a submission which is reproduced at para-5.1 of the appellate order, has not furnished any further details. The appellant in response to the notice issued by the Ld.CIT(A) has filed adjournment letters on 23.07.2019, 06.08.2019 and 18.09.2019. Subsequently, no submissions were made till passing the order u/s 250 of the Act. It is seen from the above facts that the assessee has not filed written submission or explanation regarding the 6 ITA No.173/SRT/2021 /AY. 11-12 Mohansingh K Vasvadiya issues raised in the grounds of appeal. Therefore, both the authorities have decided the matter on the basis of material available on record. In such situation, the action of lower authorities cannot be faulted. However, before Tribunal, the appellant has filed two sets of paper book containing factual details and case laws. In the first paper book, containing the documents, the appellant has stated that revenue record in Form-8A, revenue records in Form- 7 and Form-12 and certificate from Shree Ganesh Khand Udyog Sahkari Mandli Ltd. are filed before the Tribunal for the first time. He is, therefore, clear that such documents were never produced before authorities below. The appellant has also filed 2 nd paper book containing various decisions in support of grounds, both on validity of reopening as well as addition of Rs.24,00,000/- on account of unexplained money u/s 69A of the Act. Though the appellant has not fully complied before the lower authorities, we are of the view that in the interest of substantial justice one more opportunity needs to be given to appellant. We, therefore, admit the additional evidence under Rule-29 which permits ITAT to admit the additional evidence for any substantial cause. The intention behind the Rule is that substantial justice should be done and the interest of justice should be the overriding consideration. In view of the above, we admit additional evidence and set aside the order of Ld.CIT(A) and restore the matter back to the file of AO for de novo adjudication in accordance with law. The AO should consider all the materials which have been furnished before the Tribunal and he may also call for additional information and 7 ITA No.173/SRT/2021 /AY. 11-12 Mohansingh K Vasvadiya explanation from the assessee as deemed fit. The assessee is also directed to be more vigilant in future and furnish all the details called for by the AO by not seeking adjournment without any valid reasons. For statistical purposes, the appeal of assessee is treated as allowed in above terms. 10. In the result, appeal of the assessee is allowed for statistical purposes. Order is pronounced on 18/06/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) JUDICIAL MEMBER ACCOUNTANT MEMBER स ू रत /Surat Ǒदनांक/ Date: 18/06/2024 Dkp Outsourcing Sr.PS Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat