SHRI MOHAMMAD ISMAIL SOFI, SRINAGAR V. INCOME TAX OFFICER WARD-1, SRINAGAR

ITA 283/ASR/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5083 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-06-2024
• Assessment Year: misc
• Appeal Filed On: 13-05-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 144; 250; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DAS GUPTA, JUDICIAL MEMBER I.T.A. No.283/Asr/2024 Assessment Year: 2017-18 Mohd. Ismail Sofi, Opposite J & K Bank Habakadal Srinagar. [PAN:AWEPS8581J] (Appellant) Vs. ITO, Ward (1), Srinagar. (Respondent) Appellant by Sh. Bashir Ahmad Lone, CA Respondent by Sh. Radhey Shyam Jaiswal, Sr. DR Date of Hearing 24.06.2024 Date of Pronouncement 12.08.2024 ORDER Per: Udayan Das Gupta, JM This appeal is presented by the assessee against the order of the Ld. CIT (A) NFAC, order dated 17/01/2024, passed u/s 250 of the Act 61, confirming the assessment order passed by the ITO Ward-2, Srinagar, u/s 144 of the Act 1961, dated 24.12.2019. 2. Condonation of delay: 33 days: It is pointed out by the registry that this appeal is filed belatedly by thirty-three days. The assessee has filed an application I.T.A. No.283/Asr/2024 Assessment Year: 2017-18 2 explaining the delay along with an affidavit that the assessee is a senior citizen and totally ignorant about operating of computers and he was not aware as to when the first appellate order has been passed and states that the first appellate order has been served on his tax consultant Mr C A Majaz, who never informed the assessee regarding the outcome of the first appeal and handed back file records. Subsequently, with the help of newly appointed counsel Mr Bashir Ahmad (FCA) the assessee filed this appeal before the Tribunal belated by 33 days. As such he prays for condonation of the delay and admission of the appeal. Considering the facts and circumstances that the assessee is a senior citizen and not acquainted with digital technology and has to rely on other professionals to help him out, we are of the opinion that he was prevented by sufficient cause from presenting the appeal in time. The Ld. DR did not oppose the condonation application. The delay of 33 days is condoned and the appeal is admitted to be heard on merits. 3. The grounds of appeal of the assessee are as below: “1. The assessment is bad in law, as no real opportunity was granted to appellant during the year assessment proceedings & appellant could not avail the opportunity before C1T(A), as communication was not received by appellant. 2. The Ld. CIT(A) confirmed the addition of Rs 14,54,900.00 u/s 69A of the Act in an arbitrary manner when the same represent sales and collection from customers made I.T.A. No.283/Asr/2024 Assessment Year: 2017-18 3 in ordinary course of business and duly accounted in the books of accounts. 3. The Ld. CIT(A) confirmed the addition of Rs 10.19,920.00 in an arbitrary manner by confirming profit rate of 8% on balance bank credits, when the assesees profits are comparatively very low. 4. That the assessment is based on mere presumptions and conjectures 5. The appellant craves leave to add, amend, modify, withdraw any ground of appeal at the time of hearing and before the appeal is disposed off. 6. Therefore it is prayed, that the aforesaid additions made may please be deleted in full.” 4. The brief facts are that the assessee is engaged in the business of biscuits and confectionary and sweets under the trade name of M/s Shalimar Sweets, located at Habkadal, Srinagar. During the FY 2016-17 (Asst year 2017-18 under appeal), there was deposit of Rs.1,41,91,271/- (inclusive of Rs.14,54,900/- in SBN during demonetization period), in his bank account, with J K Bank, Srinagar. 4.1 In absence of any regular return on record, and in absence of any compliance or response from the assessee in response to notice u/s 142(1), of the Act 61, the AO completed the assessment u/s 144 of the Act, by determining the business profits @ 8% on business turnover at Rs. 10,19,920/- (excluding the SBN deposits) I.T.A. No.283/Asr/2024 Assessment Year: 2017-18 4 and further added back the amount of SBN Rs. 14,54,900/- u/s 69A of the Act 61, and the assessed income was determined at Rs.24,74,820/-. 5. The Ld. CIT (A) in course of appeal proceedings, has considered the SOF and the grounds of appeal contained in memorandum of appeal in Form 35, and has passed a speaking order, on the basis of materials before him, but we find that the assessee has not been heard during appellate proceedings and the assessee could not produce documentary evidences in support of his contentions in grounds of appeal. 6. The Ld. AR of the assessee submitted that no communication of hearing or notice has been received from the appeal office, by the assessee, even though it is apparent from the appellate order that notices have been issued on five different dates. It is not clear whether notices are issued through ITBA portal or through email id mentioned in Form – 35, and as such the assessee could not produce documentary evidences and cash book to substantiate the deposits of SBN in bank account and the necessary evidences required for determination of business income. As such he prays that an opportunity may be allowed to the assessee for explaining his business transactions vis a vis deposits of SBN, through production of all necessary evidences including books of accounts. I.T.A. No.283/Asr/2024 Assessment Year: 2017-18 5 7. The Ld. DR relied on the order of the Ld. CIT (A) and has argues that the first appellate authority has passed a speaking order based on the materials available before him and prays that the appeal order may be sustained. 8. We have heard both the rival submissions and considered the materials on record. It is seen that the assessee needs to explain the SBN deposits with proper books of accounts and other documentary evidences, which has not been done in this case. It is also not clear to us whether the notices from first appeal office is served through ITBA portal or otherwise. 8.1 As such in the interest of justice , we remand the matter back to the files of the Ld. CIT (A), to allow the assessee an opportunity of producing all documentary evidences needed to explain and establish his case in relation to the grounds of appeal contained in form 35, and to pass an order on merits of the case , after obtaining necessary report from the AO as per provisions of law, and the assessee is also directed to fully cooperate in appellate proceedings and file all documentary evidences to establish his claim. 8.2 Notice of hearing from the Ld. CIT (A) office may be issued as per provisions of section 282 of the Act 61, as per observation of the Hon’ble jurisdictional Punjab and Haryana High court, in the case of Munjal Bcu Centre Of I.T.A. No.283/Asr/2024 Assessment Year: 2017-18 6 Innovation And ... vs Commissioner Of Income Tax Exemptions ... on 4 March, 2024 Neutral Citation No:=2024:PHHC:030865-DB {2024:PHHC:030865-DB. 9. In the result, the appeal of the assessee bearing ITA No. 283/Asr/2024 is allowed for statistical purposes. Order pronounced in the open court on 12.08.2024 Sd/- Sd/- (Dr. M. L. Meena) (UDAYAN DAS GUPTA) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order I.T.A. No.283/Asr/2024 Assessment Year: 2017-18 7