Appeal Details
Counselvise Citation
[2023] 100 COUNSELVISE.COM (IT) 5762 (ITAT-LUCKNOW)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 4 month(s) 14 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
30-10-2023
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
SMC
Next Hearing Date
17-10-2023
Assessment Year
2017-2018
Appeal Filed On
16-06-2020
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “SMC”, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA No.213/LKW/2020 Assessment Year 2017-18 Income Tax Officer, Range VI(2), Lucknow. Vs. Nitesh Mehta, 8C Sringar Nagar, Alambagh, Lucknow PAN AKAPM 7005K (Respondent) (Appellant) Ms. Gurneet Kaur, Advocate Appellant by Shri Sanjeev Krishna Sharma, Addl. CIT(DR) Respondent by 18/10/2023 Date of hearing 31/10/2023 Date of pronouncement O R D E R This appeal is preferred by the assessee against the order dated 05.11.2019 passed by the ld. Commissioner of Income Tax Appeal [hereinafter called the CIT(A)], Lucknow-2 for Assessment Year (AY) 2017-18. 2.0 The brief facts of the case are that during the period of demonetization i.e. 09.11.2016 to 30.12.2016, information was received from SHO, Madiyaon, Lucknow regarding seizure of cash of Rs.20,00,000/- in old currency denomination from the possession of the assessee. In response to the query raised by the 2 ITA No. 213/Lkw/2020 Income Tax Department, it was the statement of the assessee [recorded under Oath u/s.131(1A) of the Income Tax Act, 1961 (hereinafter called the ‘Act’] that the said cash belonged to his business. Subsequently, the cash was requisitioned and seized by the Income Tax Department. The return for the captioned assessment year was filed declaring total income of Rs.3,72,720/- .The assessee was asked to explain the source of cash of Rs.20,00,000/- and it was the assessee’s submission that the seized cash pertained to the sale proceeds in the normal course of business. The assessee also furnished the cash book but failed to furnish any supporting bills and vouchers, cash memos, purchase invoices and other relevant documents for the purpose of verification. The Assessing Officer proceeded to make addition of the seized cash and completed the assessment at total income of Rs.23,72,780/-. 3.0 The assessee approached the ld. First Appellate Authority challenging the addition. While dismissing the assessee’s appeal, the ld. CIT(A) noted that the entries in the cash book filed by the assessee were not supported by any sales bills, purchase invoices, bills/vouchers for expenses etc. and, therefore, in absence of any 3 ITA No. 213/Lkw/2020 documentary evidence, the cash book did not have any evidentiary value. 4.0 Aggrieved, the assessee has approached this Tribunal, challenging the dismissal of his appeal by the ld. CIT(A) and has raised the following grounds of appeal: “1. BECAUSE, the Ld. Commissioner of Income Tax (Appeals) erred in law, and on facts in confirming the order of Assessment which is otherwise also unsustainable and bad in law as the additions made to the returned income of the assessee has been made without considering the fact that the cash relates to the business of the assessee and duly recorded in the cash book maintained by the assessee. 2. BECAUSE, on the facts and in the circumstances of the case, the order of assessment is bad in law being barred by limitation 3. BECAUSE, on the facts and in the circumstances of the case, the assessment order is bad in law as the Assessing Officer was not having the jurisdiction to assessee the instant assessee. 4. BECAUSE, on the facts and in the circumstances of the case, the CIT (A) has passed the order without providing the assessee with a due and proper opportunity of hearing and therefore the impugned order deserves to be set aside being bad in law 5. The humble assessee, craves for leave to add/amend any other ground with the prior permission of the Hon'ble Tribunal.” 4 ITA No. 213/Lkw/2020 5.0 At the outset, the ld. Authorized Representative submitted that there was a delay of 71 days in filing of the appeal, although as per the Registry of the Tribunal, the delay was of 165 days. It was submitted that the impugned order was received on 05.11.2019 and the last date for filing of the appeal before the Tribunal was 04.01.2020, whereas the appeal was filed on 17.06.2020. It was further submitted that in view of COVID-19 situation, the Hon'ble Apex Court in suo motu Writ Petition (Civil) No.03/2020, vide order dated 23.03.2020, had ordered that the period of limitation in all proceedings in various Courts/Tribunals across the country, irrespective of the limitation prescribed under the general law or special laws, shall stand extended w.e.f. 15.03.2020 till further orders. It has been submitted that, therefore, while calculating the period of delay for filing the present appeal, the period from 16.03.2020 to 16.06.2020 had to be excluded and, therefore, the delay for filing of the present appeal was only of 71 days. 5 ITA No. 213/Lkw/2020 6.0 In response, the ld. Senior Departmental Representative fairly accepted that the delay in filing of the present appeal was only of 71 days. 7.0 My attention was further drawn to the application filed for condonation of delay of 71 days, wherein, it has been submitted that after receiving the order of the ld. CIT(A), the assessee handed over the relevant papers to a new counsel for preparation of appeal before the ITAT but the new counsel did not file the appeal in time and, subsequently, the counsel again had to be changed who filed the present appeal only on 17.06.2020. My attention was also drawn to the affidavit supporting the delay condonation application. The ld. A.R. prayed that the delay for filing of the appeal was entirely beyond the control of the assessee and, therefore, the delay should be condoned and the appeal be admitted to be heard on merits. 8.0 The ld. Senior D.R. opposed the prayer of the ld. A.R. for the condonation of the delay and submitted that the contention of the assessee regarding the earlier counsel not filing the appeal in time was not verifiable. 6 ITA No. 213/Lkw/2020 9.0 I have heard both the parties on the issue of condonation of the delay and I am of the considered opinion that no assessee would benefit from filing the appeal belatedly and, therefore, I deem it appropriate to condone the delay of 71 days and admit the appeal for the purpose of regular hearing. 10. The ld. A.R. submitted that, although, the assessee had filed the cash book before the Assessing Officer and also before the CIT(A) but bills and supporting vouchers could not be produced at that particular point of time. On a query from the bench, the ld. A.R. under took to file the relevant bills, vouchers and other documents etc. in support of the cash book if another opportunity was afforded to the assessee. 11. The ld. Senior D.R. had no objection if the assessee was given another opportunity in this regard. 12. I have heard both the parties and have also perused the records. I restore this issue to the file of the Assessing Officer with the direction to adjudicate the issue afresh after providing the assessee with another opportunity in this regard and also direct the assessee to produce bills/vouchers, cash memos and other 7 ITA No. 213/Lkw/2020 documents etc. in support of the cash book before the Assessing Officer, failing which the Assessing Officer shall be at liberty to adjudicate the issue at hand in accordance with law, even ex- parte qua the assessee. 13. In the result, appeal filed by the assessee stands allowed for statistical purposes. . (Order pronounced in the open court on 31/10/2023) Sd/- (SUDHANSHU SRIVASTAVA) JUDICIAL MEMBER Aks – Dtd. 31/10/2023 Copy of order forwarded to: (1) The appellant (2) The respondent (3) Commissioner (4) Departmental Representative (5) Guard File Assistant Registrar
