Sh. Shantanu Gautam, Aligarh V. I.T.O., Ward-1, Aligarh

ITA 20/AGR/2015

• Counselvise Citation: 2020314 RSA 2015
• Duration Of Justice: 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 19-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT SHUK LA
• Assessee Lawyers: PANKAJ GARGH
• Section: 143(3)

Judgement Text

I.T.A. NO. 20/AGR/2015 ASSESSMENT YEAR 2009-10 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AGRA (SMC) BENCH, AGRA [CORAM:PRAMOD KUMAR AM ] I.T.A. NO. 20/AGR/2015 ASSESSMENT YEAR: 2009-10 SHRI SHANTANU GAUTAM, ..APPELLANT 1/172, SAKET COLONY, SURENDRA NAGAR, ALIGARH. [PAN:AOXPG 9447 C ] VS. INCOME-TAX OFFICER, .RESPONDENT WARD 1, ALIGARH. APPEARANCES BY: PANKAJ GARGH FOR THE APPELLANT AMIT SHUKLA FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : JUNE 17 , 2015 DATE OF PRONOUNCING THE ORDER : JUNE 24 , 2015 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED THE CORRECTNESS OF EXPARTE ORDER DATED 30 TH OCTOBER 2014, PASSED BY THE LEARNED CIT(A) IN THE MATTER OF ASSESSMENT U/S. 143(3) OF THE INCOME-TAX ACT FOR THE ASSESSMENT YEAR 2009-10. 2. GRIEVANCE OF THE ASSESSEE, AS PRESSED BEFORE US, IS TWO-FOLD FIRST, THAT THE CIT(A), ON THE FACTS AND CIRCUMSTANCES OF THE CASE, OUGHT TO HAVE CONDONE THE DELAY IN FILING APPEAL BEFORE HIM; SECOND - THAT THE CIT( A), ON THE FACTS AND CIRCUMSTANCES OF THE CASE, OUGHT TO HAVE DECIDED THE MATTER ON ME RITS AND AFTER GIVING ONE MORE I.T.A. NO. 20/AGR/2015 ASSESSMENT YEAR 2009-10 PAGE 2 OF 4 OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ARGUMEN TS ADVANCED BY THE LEARNED COUNSEL, IN SUBSTANCE, DEAL WITH THESE TWO ASPECTS OF THE MATTER. WE TAKE UP BOTH THESE ISSUES TOGETHER. 3. THE ASSESSEE BEFORE US IS A SALARIED EMPLOYEE. I T APPEARS THAT ON THE BASIS OF AIR INFORMATION, THE ASSESSING OFFICER CAME TO K NOW OF CASH OF RS.20,00,000 HAVING BEEN DEPOSITED IN ASSESSEES BANK ACCOUNT ON 27.08.2008. DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS AND WHEN THE ASSESSEE WAS CALLED UPON TO EXPLAIN THE SOURCE OF THIS DEPOSIT AND SOME OTHE R SMALL DEPOSITS AGGREGATING TO RS.20,92,802, IT WAS SUBMITTED BY THE ASSESSEE THAT THE MONEY WAS GIVEN TO HIM BY HIS FATHER. WHILE THE ASSESSING OFFICER ACCEPTED TH IS EXPLANATION TO THE EXTENT OF RS.16,00,000 HE DECLINED THE SAME IN RESPECT OF BA LANCE AMOUNT OF RS.4,92,802. IT WAS IN THIS BACKDROP THAT THE ADDITION OF RS.4,92,8 02 WAS MADE TO THE INCOME RETURNED BY THE ASSESSEE. AGGRIEVED BY THE STAND SO TAKEN BY THE ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE TH E LEARNED CIT(A). HOWEVER, THE APPEAL SO FILED BY THE ASSESSEE WAS DELAYED BY FIVE MONTHS. IT APPEARS THAT IN THE CONDONATION PETITION BEFORE THE CIT(A), SEEKING CON DONATION OF THIS DELAY, IT WAS SUBMITTED THAT THE ASSESSEE IS A BANK EMPLOYEE AND PRESENTLY POSTED OUTSIDE ALIGARH, I.E., HIS PERMANENT PLACE OF RESIDENCE AT WHICH THE NOTICES ETC WERE SERVED, AND THE NOTICE SERVED ON HIS MOTHER COULD NOT BE CO MMUNICATED TO HIM IN TIME. IT WAS ALSO EXPLAINED THAT THE ASSESSEES MOTHER IS SU FFERING FROM MULTIPLE DISEASES, THAT THE ASSESSEE IS ALSO PHYSICALLY HANDICAPPED PE RSON WITH LIMITED MOBILITY AND THAT IT WAS ON ACCOUNT OF THE CIRCUMSTANCES BEYOND HIS CONTROL THAT THE APPEAL COULD NOT BE FILED IN TIME. THE LEARNED CIT(A) DISMISSED THIS PLEA SIMPLY BY OBSERVING THAT AS NO CERTIFICATE OF PHYSICAL HANDICAP OR MOTHERS DISEASE IS ENCLOSED, THOUGH I.T.A. NO. 20/AGR/2015 ASSESSMENT YEAR 2009-10 PAGE 3 OF 4 CLAIMED, THE DELAY IS NOT CONDONABLE. EVEN ON MERI TS, LEARNED CIT(A) DID NOT SAY ANYTHING BEYOND POINTING OUT THE FACT THAT THE ASSE SSEE HAS NOT COMPLIED WITH THE NOTICES ON VARIOUS DATES. THE GROUNDS OF APPEAL RAI SED BY THE ASSESSEE WERE, THUS, DISMISSED IN LIMINE . THE ASSESSEE IS AGGRIEVED AND IS IN FURTHER APPEA L BEFORE ME. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. 5. I FIND THAT IT IS AN UNDISPUTED POSITION THAT TH E ASSESSEE IS A SALARIED EMPLOYEE AND WAS NOT REGULARLY LIVING AT THE PLACE ON WHICH THE NOTICES WERE SERVED. THE EXPLANATION OF THE ASSESSEE HAS NOT BEEN FAULTED WI TH NOR EVEN DOUBTED BUT HAS BEEN SUMMARILY REJECTED FOR WANT OF SUPPORTING EVID ENCE IN RESPECT OF HIS MEDICAL CONDITION. THIS APPROACH OF THE LEARNED CIT(A), IN MY CONSIDERED VIEW, IS WHOLLY UNSUSTAINABLE IN LAW. WHILE ADJUDICATING UPON ACCEP TABILITY OF EXPLANATION OF THE ASSESSEE, THE AUTHORITY SHOULD CONSIDER THE SAME IN THE LIGHT OF PREPONDERANCE OF PROBABILITIES AND UNLESS THE EXPLANATION IS INCONSI STENT, THE EXPLANATION IS CLEARLY CONTRADICTORY TO THE PREPONDERANCE OF PROBABILITIES AND WHEN CONTRADICTIONS ARE APPARENT FROM SUCH EXPLANATION, THE EXPLANATION OUG HT TO BE ACCEPTED. ON THE FACTS OF THIS CASE, IN MY CONSIDERED VIEW, THE CIT(A) OUG HT TO HAVE ACCEPTED THE EXPLANATION OF THE ASSESSEE. I, THEREFORE, DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE OF CIT(A) FOR ADJUDICATION ON MERITS AND A FTER HOLDING THAT THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) IS CONDONABLE ON THE F ACTS AND CIRCUMSTANCES OF THE CASE. I ACCORDINGLY DIRECT THE CIT(A) TO DISPOSE OF THE MATTER ON MERITS AFTER GIVING I.T.A. NO. 20/AGR/2015 ASSESSMENT YEAR 2009-10 PAGE 4 OF 4 REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, BY WAY OF SPEAKING ORDER AND IN ACCORDANCE WITH LAW. ORDER ACCORDINGLY. 6. AS THE MATTER HAS BEEN SET ASIDE TO THE FILE OF CIT(A) FOR FRESH ADJUDICATION ON MERITS, I SEE NO NEED TO DEAL WITH OTHER GRIEVANCES RAISED BY THE ASSESSEE. IN VIEW OF THE ABOVE CONCLUSIONS, THESE GRIEVANCES ARE INFR UCTUOUS AND REQUIRE NO ADJUDICATION. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 24 TH DAY OF JUNE, 2015. SD/- PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: THE 24 TH DAY OF JUNE 2015 *AKS/- COPIES TO: (1) THE APPELLANT (2) THE RESPONDE NT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA