Shri Madhukar Narmaashankar Trivedi, Rajkot V. The ITO, Ward-3, , Surendranagar

ITA 26/RJT/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8536 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 18-02-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 02-02-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reasonable cause; TDS; Set aside
• Section: 144; 250; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted Through Virtual Court) Before: Smt. Annapurna Gupta, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member Shri Madhukar Narmaashankar Trivedi, 92, Harsiddhi Krupa, Mari Gold Society In Nandanvan Society, Jamnagar Road, Rajkot-360006 PAN No: AAPPT5415K (Appellant) Vs The ITO, Ward-3, Surendranagar (Respondent) Assessee Represented: NONE Revenue Represented: Shri Ashish Kumar Pandey, Sr. D.R. Date of hearing : 19-02-2024 Date of pronouncement : 23-02-2024 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- This appeal is filed by the assessee as against the appellate order dated 29-11-2022 passed by Ld. CIT(A), NFAC, Delhi declining to condone the delay of 122 days in filing the above appeal by the assessee for not submitting condonation petition explaining the delay. The impugned order reads as follows: “The appellant has filed the appeal on 29.04.2019 against the order received by it on 27.11.2018, which is belated as per Section 249(2) of the I.T. Act, 1961. The appellant has mentioned in para 15 of Form-35 that the ITA No. 26/Rjt/2023 Assessment Year: 2011-12 I.T.A No. 26/Rjt/2023 A.Y. 2011-12 Page No Shri Mahukar Narmaashankar Trivedi Vs. ITO 2 grounds for condonation of delay are as per the written submission. However, in spite of various opportunities provided to the appellant vide notices issued to it u/s 250 of the Act, as mentioned above, the appellant failed to provide any reason or ground to explain the aforesaid delay in filing the appeal. Vide submissions dated 23.01.2021 and 14.10.2022, the appellant only provided its response in support of its grounds of appeal, but did not mention any reason for the delay of 122 days in filing the appeal. Therefore, considering the above facts, it is clear that the appellant could not establish any reasonable cause for the aforesaid delay in filing the appeal. Hence, appeal of the assessee is not admitted and condonation of delay is not granted.” 2. During the course of hearing, the assessee filed an Affidavit explaining that he is 74 years old Senior Citizen and retired from Indian Postal Department from Surendranagar. After retirement he sold his property at Surendranagar and settled down at Rajkot. Hence the notices served during assessment proceedings was not reached to him, which has resulted in passing an exparte assessment order u/s. 144 r.w.s. 147 of the Act and making addition on the cash deposits of Rs.11,43,210/- in his Bank Account maintained with Rajkot Nagrik Sahakari Bank Ltd. The Assessing Officer treated the cash deposit as unexplained income of the assessee u/s. 69A of the Act and demanded tax thereon vide order dated 19.11.2018. 2.1. It is thereafter, the assessee received a call from Income Tax Department for payment of outstanding demand in March, 2019 and also found that his bank account was attached by the department. It is thereafter, the assessee engaged a Chartered Accountant and collected the exparte assessment order and filed the appeal with 122 days delay. The assessee also explained that the so called cash deposit in the bank account are nothing but the retirement benefit of Rs.10,76,591/- in cash from Postal I.T.A No. 26/Rjt/2023 A.Y. 2011-12 Page No Shri Mahukar Narmaashankar Trivedi Vs. ITO 3 Department. In fact the Postal Department had already made TDS on the above income, therefore the assessee has not filed his Return of Income. Though the assessee filed all the bank details before Ld. CIT(A) with the detailed written submission, but failed to file the required condonation petition before Ld. CIT(A) which has resulted in dismissal of the appeal. Therefore the assessee requested to condone the delay on the genuine hardship faced by him, being a Senior Citizen. The assessee also placed on record, the copies of written submissions and documents filed before Ld. CIT(A), NFAC more particularly at page no. 9, the Certificate issued by Postal Department on the post retirement benefit paid in cash, which reads as follows: DEPARTMENT OF POST: INDIA o/o H.R.O. R.M.S. "RJ" Division Rajkot-360 001. CERTIFICATE To whom so ever it may concerned THIS IS TO CERTIFY THAT RS 10,76,591/-(Ten Lakh Seventy Six Thousand Five Hundred Ninety One only) AS RETIREMENT BENEFIT IS PAID IN CASH THROUGH SRO SURENDRANAGAR TO SHRI M.N.TRIVEDI EX SA SRO SURENDRANAGAR. HIS PAN NO IS AAPPT5458K. THE DETAILS OF RETIREMENT BENEFIT ARE AS UNDER: 1. LEAVE ENCASHMENT PAID: RS. 256220 2. CGEGIS PAID: RS. 35464 3. DCRG PAID: RS. 422763 4. GPF FINAL PAYMENT: RS. 164578 HEAD RECORD OFFICER R.M.S R Division, Rajkot-360 001 Place: Rajkot Date : 28-03-2019 I.T.A No. 26/Rjt/2023 A.Y. 2011-12 Page No Shri Mahukar Narmaashankar Trivedi Vs. ITO 4 3. Shri Jaimin Shah appeared on behalf of the assessee, but there is no Letter of Authority in his favour, hence we could not take his oral submissions on record. Ld. Sr. D.R. Shri Ashish Kumar Pandey appearing for the Revenue has not disputed the Certificate issued by Postal department about the retirement benefits of the assessee. Further the assessee being a Senior Citizen, the Ld. D.R. fairly accepted to set aside the matter back to the file of Jurisdictional Assessing Officer for taking note of the materials placed before us and pass appropriate order on merits of the case. 4. We have given our thoughtful consideration and perused the materials available on record. It is not in dispute that written submissions and various documents were filed by the assessee before Ld. CIT(A). It is clear cut case that the cash deposit of Rs.10,76,591/- made by the assessee in his bank account is from the retirement benefit of the assessee from the Postal Department. As stated by the assessee, after retirement from service, he having shifted from Surendranagar to Rajkot, he did not have the benefit of responding to the notices issued by the Ld. A.O. Only after assessee’s bank account attachment, he came to know about the exparte assessment proceedings by the Ld. A.O. Thereafter assessee filed appeal before Ld. CIT(A) with a delay of 122 days, however failed to file Condonation Petition explaining the reasonable cause for the delay in filing the appeal. 4.1. Now before us, the assessee has filed a Notarized Affidavit dated 18.01.2024 explaining the delay. We are convinced with the reasons stated in the above Affidavit and we hereby condone the I.T.A No. 26/Rjt/2023 A.Y. 2011-12 Page No Shri Mahukar Narmaashankar Trivedi Vs. ITO 5 delay of 122 days in filing the appeal before Ld. CIT(A). However the assessment order itself is an exparte order, in the interest of justice, we deem it fit to set aside the matter back to the file of Jurisdictional Assessing Officer (JAO) to do de-novo assessment. Needless to state, the assessee should cooperate by providing all the required details before the JAO for passing fresh assessment order in accordance with law. 5. In our considered view taking note of the facts of the case the Revenue should be vigilant enough in reopening such assessment of a retired government servant and putting the Senior Citizen unnecessary legal battling on his hard earned retirement benefits, wherein no escaped income from assessment. 6. In the result, the appeal filed by the Assessee is allowed for statistical purpose. Order pronounced in the open court on 23-02-2024 Sd/- Sd/- (ANNAPURNA GUPTA) (T.R. SENTHIL KUMAR) ACCOUNTANT MEMBER True Copy JUDICIAL MEMBER Ahmedabad : Dated 23/02/2024 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) I.T.A No. 26/Rjt/2023 A.Y. 2011-12 Page No Shri Mahukar Narmaashankar Trivedi Vs. ITO 6 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपीलȣय अͬधकरण, राजकोट