Mr Ramanath Bajpai, Pune V. Income Tax Officer, Ward-4(4), Pune, Pune

ITA 218/PUN/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7438 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2024
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 06-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 147; 148; 142(1); 69A; 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI VINAY BHAMORE, JUDICIAL MEMBER आयकर अपील सं. / ITA No.218/PUN/2024 िनधाᭅरण वषᭅ / Assessment Year : 2011-12 Mr. Ramanath Bajpai, B.No.5, S.No.245, Anant Co-op Housing Society, Aundh, Pune- 411007. PAN : AILPB5763E Vs. ITO, Ward-4(4), Pune. Appellant Respondent आदेश / ORDER PER VINAY BHAMORE, JM: This appeal filed by the assessee is directed against the order dated 26.10.2023 passed by Ld CIT(A)/NFAC for the assessment year 2011-12. 2. The present appeal is filed belatedly i.e. with the delay of 44 days. The appellant furnished an affidavit praying for condonation of delay in the circumstances mentioned therein. The relevant portion of the affidavit for condonation of delay is reproduced hereunder :- Assessee by : Shri Gopal Aswani Revenue by : Shri A. K. Mahala Date of hearing : 25.04.2024 Date of pronouncement : 02.05.2024 ITA No.218/PUN/2024 2 “The delay in filing the appeal was due to the fact that I, being a senior citizen, aged about 75 years and dependent on family members for daily activities. I have also undergone certain medical treatment. Therefore, was not able to provide all related documents for filing of appeal before your honor to the authorized representative within time. I, therefore requests the honorable Bench to kindly consider the above mentioned fact and condone the delay in filing of Appeal by 44 days (forty-four days) for the AY 2011-12 and admit the appeal and oblige.” 3. The ld. Sr. DR had not controverted the averments made in the above affidavit. We are of the considered opinion that the illness of assessee constitutes reasonable cause for not filing the appeal within prescribed time. In the circumstances, the delay is hereby condoned and the appeal is admitted for adjudication. 4. The appellant raised the following grounds of appeal :- “1) On the facts and in the circumstances of the case and considering legal position the honorable CIT(A) is not justified in not admitting the appeal for delay in filing of Appeal of 118 days. The appellant hereby prays that the appeal order passed by the honorable CIT(A) may please be quashed considering as the said order passed is against the Principle of Natural Justice and may please be remanded back to the file of the honorable CIT(A). 2) On the facts and in the circumstances of the case and in law the honorable CIT(A) has erred and is not justified in confirming the addition of Rs.8,68,769/- made by the learned AO by estimating profit on trading in commodities transaction @0.1% of turnover without considering the fact that the appellant has incurred loss from the said commodities transactions. The appellant prays that the addition may please be deleted. 3) On the facts and in the circumstances of the case and in law the honorable CIT(A) has erred and is not justified in confirming the addition of Rs. 51,02,600/- by treating the cash deposits made by the appellant in the bank account as unexplained credit u/s 69A of the I T Act without appreciating the fact that the said cash deposited in the bank was received from the family members out ITA No.218/PUN/2024 3 of the past savings. The appellant prays that the addition may please be deleted. 4) On the facts and in the circumstances of the cases and in law the honorable CIT(A) has erred and is not justified in confirming the addition of Rs. 16,251/- being dividend income earned by the appellant by appreciating the fact that the said dividend income was received from the Domestic Companies and is exempt from tax. The appellant prays that the addition may please be deleted. 5) The appellant hereby reserves the right to add, amend, alter, delete or raise any additional ground of appeal.” 5. Briefly, the facts of the case are that the appellant is an individual. No return of income for the year under consideration was filed under the provisions of section 139(1) of the Act. Based on the information available with the AIR that the appellant had made cash deposit of Rs.10 lakhs or more in savings bank account maintained with Axis Bank and Cosmos Bank, the Assessing Officer formed an opinion that the income escaped assessment of tax. Accordingly, the Assessing Officer reopened the case u/s 147 of the IT Act and also issued notice u/s 148 of the Act. Thereafter, statutory notices u/s 142(1) were also issued. However, no compliance was made by the assessee in reply to the said notices issued u/s 148 and 142(1) of the Act. Since the assessee had failed to furnish any details to substantiate the source of such cash deposits, the Assessing Officer in the order passed u/s 144/147 of the Act determined the total income of the assessee at ITA No.218/PUN/2024 4 Rs.60,09,335/- by treating the cash deposit of Rs.51,02,600/- as unexplained money u/s 69A of the Act. 6. Being aggrieved, an appeal was filed with a delay of 118 days before the ld. CIT(A)/NFAC, the ld. CIT(A)/NFAC dismissed the appeal of the assessee in limine without condoning the delay. 7. Being aggrieved by the decision of the ld. CIT(A)/NFAC, the appellant is in appeal before us. 8. We heard both the sides and perused the material available on record. The solitary issue that arises for our consideration is whether the ld. CIT(A)/NFAC was justified in dismissing the appeal in limine without condoning the delay. We find from the record that the appellant filed the appeal before the ld. CIT(A)/NFAC with the delay of 118 days. The appellant had offered an explanation before the ld. CIT(A)/NFAC stating that the delay had occurred for the reasons of illness of the appellant. The appellant also filed evidence in the form of affidavit in support of this explanation. The ld. CIT(A)/NFAC had not doubted the veracity of the averments made in the affidavit nor was there any material contrary to the averments made therein. In the circumstances, we are of the considered opinion that the ld. CIT(A)/NFAC ought to have condoned the delay of 118 days and adjudicated the issues in appeal on merits. ITA No.218/PUN/2024 5 We also find from the record that in the earlier assessment years i.e. A.Y. 2010-11 and 2012-13 in the identical circumstances of the assessee’s own case, the Co-ordinate Bench of this Tribunal in ITA No.217 & 219/PUN/2024 vide order dated 19.03.2024 had set-aside the matter to the file of the ld. CIT(A)/NFAC. In the light of this fact, we set-aside the order of the ld. CIT(A)/NFAC and remand the matter back to the file of the ld. CIT(A)/NFAC to adjudicate the issue in appeal on merits in accordance with law after affording reasonable opportunity of being heard to the appellant. 9. In the result, the appeal filed by the assessee stands partly allowed for statistical purposes. Order pronounced in the open Court on 02 nd day of May, 2024. Sd/- Sd/- (INTURI RAMA RAO) (VINAY BHAMORE) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; ᳰदनांक / Dated : 02 nd May, 2024. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The Pr. CIT concerned. 4. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “B” बᱶच, पुणे / DR, ITAT, “B” Bench, Pune. 5. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.