Shrenikkumar Pravinchandra Shah, Surat V. Income Tax Officer, Ward 1(3)(9), Surat, Surat

ITA 190/SRT/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0508 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-07-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 19-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Unexplained investment; Set aside
• Section: 147; 148; 144; 142(1); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JIDICIAL MEMBER & SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.190/SRT/2024 Assessment Year: (2012-13) (Virtual Court Hearing) Shrenikkumar Pravinchandra Shah 105, Shrenik Park, patel Prakash Society, New Rander Road, Surat- 395009 Vs. Income Tax Officer, Ward- 1(3)(9), Surat, Room No.308, 3 rd Floor, Income Tax Office, Anavil Business Center, Adajan Hazira Road, Adajan, Surat-395009 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AZVPS 7335 N (अपीलाथŎ/Appellant) (ŮȑथŎ /Respondent) िनधाŊįरती की ओर से /Appellant by Shri Sapnesh R Sheth, CA िनधाŊįरती की ओर से /Respondent by Shri Vinod Kumar, Sr. DR अपील पंजीकरण/Appeal instituted on 20.02.2024 सुनवाई की तारीख /Date of Hearing 31.07.2024 घोषणा की तारीख /Date of Pronouncement 31.07.2024 आदेश / O R D E R PER BIJAYANANDA PRUSETH, AM: This appeal by the assessee emanates from the order of the Learned Commissioner of Income-tax(Appeals) /National Faceless Appeal Centre, Delhi [in short, “CIT(A)]” u/s 250 of the Income-tax Act, 1961 (in short, “the Act”) dated 124.10.2023 for assessment year 2012- 13. 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), NFAC has erred in passing the order without providing reasonable opportunity of hearing to assessee. 2 ITA No.190/SRT/2024 AY.12-13 Shrenikkumar P Shah 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals), NFAC has erred in confirming the action of Assessing Officer in reopening assent by issuing notice u/s 148 of the I.T. Act, 1961. 3. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals), NFAC has erred in confirming the action of Assessing Officer in making addition of Rs.32,50,000/- as unexplained investment in share capital. 4. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals), NFAC has erred in confirming the action of Assessing Officer in making addition of Rs.1,08,92,351/- on account of deposits made in bank account(s) as unexplained cash credit. 6. It is therefore prayed that the above addition made by Assessing Officer and confirmed by Commissioner of Income-tax (Appeals) mayp0lease be deleted. 7. 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 59 days in filing appeal before Tribunal. The assessee has filed an affidavit giving reasons for delay in filing of appeal before the Tribunal. In the affidavit, it has been stated that appellant was not aware regarding order passed by Ld.CIT(A) on 24.10.2023. The appeal should have been filed before ITAT on or before 23.12.2023. Hence, there was delay of 59 days in filing the appeal. The appellant stated that he came to know about the appellate order in January, 2024 because previous counsel failed to attend and give reply to any notices before CIT(A). The assessee asked for latest status of his case, counsel gave evasive reply. Thereafter assessee engaged another counsel who checked the status and advised 3 ITA No.190/SRT/2024 AY.12-13 Shrenikkumar P Shah to file the appeal with request to condone the delay. He stated that there was no mala fide intention in not filing the appeal within 60 days. The Ld. AR has requested to condone the delay in filing appeal in the interest of justice. The Ld.AR submitted that delay of 59 days was neither deliberate nor intentional. 2.1. On the other hand, Learned Senior Departmental- Representative (Ld.Sr-DR) for the Revenue has stated that the appellant has not properly explain the delay in filing appeal before the Tribunal. 2.2. We have considered the reasons given by the Ld. AR and perused the accompanied application. We find that the delay of 59 days in filing appeal was not deliberate and intentional on the part of assessee. Due to negligence of the previous CA, the appellant could not receive the appellate order. Only after engaging a fresh counsel he filed the appeal which has been delayed by a short period of 59 days. Hence, there was sufficient cause for not filing the appeal on time. After considering 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, 4 ITA No.190/SRT/2024 AY.12-13 Shrenikkumar P Shah the delay in filing the appeal is condoned. Let us now discuss the merit of the case. 3. Facts in brief are that assessee filed return of income (ROI) on 29.09.2012 declaring total income of Rs.2,02,320/-. The AO found that assessee invested Rs.32,50,000/- as share capital of Poojan Tradecom Pvt. Ltd., a member of Bartar Group. As per the information, the fund received in the company as share capital was not genuine. Unaccounted fund received in cash was routed in the books of account in the form of share application money and share premium. Accordingly, the case was reopened with approval of the PCIT-1, Surat. The AO issued notice u/s 142(1) and show cause to the assessee to explain the source of investment of Rs.32,50,000/- in the form of share capital in Poojan Tradecom Pvt. Ltd. The AO also requested assessee to explain total credit entries of Rs.1,08,92,351/- in the bank account with Bank of India. The assessee did not file any submission till the date of assessment order. Hence, AO passed order u/s 144 r.w.s. 147 of the Act by making additions of Rs.32,50,000/- as unexplained investment and Rs.1,08,92,351/- as unexplained cash credits. Aggrieved by the order of AO assessee preferred appeal before CIT(A). 5 ITA No.190/SRT/2024 AY.12-13 Shrenikkumar P Shah 4. The CIT(A) issued notices on 13.01.2021, 12.09.2023 and 04.10.2023. However, there was non-compliance to all these notices by assessee. Hence, CIT(A) decided the appeal based on material available on record. He has confirmed both the addition on the ground that despite number of opportunities assessee failed to file any submission or documents in support of his claim. He observed that law assists those who are vigilant and not those who sleep over their rights. He upheld the additions made by the AO in his order u/s 144 r.w.s. 147 of the Act. Aggrieved, assessee has filed present appeal before Tribunal. 5. The Ld.AR of the assessee stated that due to mistake of the previous CA, assessee has suffered during the assessment as well as appellate proceedings. He requested that assessee is having all details and evidences to plead his case on merit. He prayed that one more opportunity may be given in the interest of justice. 6. On the other hand, Ld.Sr-DR for the Revenue stated that both AO and CIT(A) have passed ex parte orders due to non-compliance of the assessee. Hence, the appeal should be dismissed. In the alternative, the matter may be remitted back to the file of the AO for fresh adjudication. 6 ITA No.190/SRT/2024 AY.12-13 Shrenikkumar P Shah 7. We have heard both the parties and perused the materials on record. We have also gone through the decisions relied upon by the parties. The Ld. AR has argued that both AO and Ld.CIT(A) have passed order without giving reasonable and sufficient opportunities of being heard to assessee. AO made both the additions of unexplained investment and cash credit because assessee did not file details and explanation. The CIT(A) dismissed appeal by passing a short order because assessee did not comply to his notices. Considering the facts and circumstances of the case and the submission of Ld.AR for the assessee that the AO made addition for the want of explanation and evidence, which was confirmed by CIT(A) for non-compliance, we are of the considered view that the assessee deserves one more opportunity to contest its case on merit. Considering all the facts, in the interest of justice, we set aside the order of Ld. CIT(A) and remit the matter back to the file of AO with a direction to pass fresh assessment order in accordance with law after granting adequate opportunity of hearing to assessee. The assessee is directed to be vigilant and to furnish all details and explanation as needed by AO by not seeking adjournment without valid reason. With this direction, the grounds of appeal raised by the assessee is treated as allowed for statistical purposes. 7 ITA No.190/SRT/2024 AY.12-13 Shrenikkumar P Shah 8. In the result, appeal filed by the assessee is allowed for statistical purposes. Order is pronounced in the open court on 31/07/2024. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) JUDICIAL MEMBER ACCOUNTANT MEMBER स ू रत/Surat Ǒदनांक/ Date: 31/07/2024 DKP Outsourcing Sr.P.S 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 ITAT, Surat