Prashant Dnyanoba Keshwad, Pune V. Income-tax Officer, Ward - 2 (5), Pune

ITA 340/PUN/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5829 (ITAT-PUNE)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 27-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Capital asset; Principle of natural justice; Condonation of delay; Bonafide mistake
• Section: 143(3); 54F; 68

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI ANIL CHATURVEDI, AM . / ITA NO.340/PUN/2019 / ASSESSMENT YEAR : 2013-14 PRASHANT DNYANOBA KESHWAD, AT SUTARWADI, POST AMBEDWAT, OPP. BANK OF MAHARASHTRA, TALUKA MULSHI, PUNE 411 045. PAN : AQGPK6724P. . / APPELLANT V/S THE INCOME TAX OFFICER, WARD 2(5), PUNE. . / RESPONDENT ASSESSEE BY : NONE. REVENUE BY : SHRI M.K. VERMA. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS APPEAL FILED BY THE ASSESSEE IS EMANATING OUT OF THE ORDER OF COMMISSIONER OF INCOME TAX (A) 3, PUNE DATED 25.04.2018 FOR THE ASSESSMENT YEAR 2013-14. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERIAL ON R ECORD ARE AS UNDER :- ASSESSEE IS AN INDIVIDUAL AND STATED TO BE ENGAGED IN T HE BUSINESS OF RESALE OF MOBILE HANDSET, COMPUTER AND ITS ACCESSORIE S AND AUTHORIZED DEALER OF RELIANCE WEBSTORE LTD., ASSESSE E FILED HIS RETURN OF INCOME FOR A.Y. 2013-14 ON 29.09.2013 DECLARING TOTAL / DATE OF HEARING : 01.04.2019 / DATE OF PRONOUNCEMENT: 16.04.2019 2 ITA NO.340/PUN/2019 INCOME OF RS.2,68,752/-. THE CASE WAS SELECTED FOR SCRUTIN Y AND THEREAFTER, ASSESSMENT WAS FRAMED U/S 143(3) OF THE ACT V IDE ORDER DT.28.03.2016 AND THE TOTAL TAXABLE INCOME WAS DETERMINE D AT RS.7,70,750/-. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CA RRIED THE MATTER BEFORE LD.CIT(A), WHO VIDE ORDER DT.25.04.2018 (IN AP PEAL NO.CIT(A), PUNE-3/10157/2016-17) DISMISSED THE APPEAL OF ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL AND HAS RAISED THE FOLLOWING GROUNDS : 1. T HE LEARNED CIT(A)-3 , PUNE ERRED IN LAW AND ON FACTS IN NOT CONDONING THE DELAY OF 58 DAYS I N FILING THE APPEAL ON THE ANALOGY , THAT APPELLANT DID NOT HAVE SUFFICIENT CAUSE FOR DE LAY IN F I LING THE APPEAL . THE LEARNED CIT(A)-3, PUNE OUGHT TO HAVE APPREC I ATED THAT, THE DELAY OCCURRED DUE TO CHANGE IN CONSULTAN T AND DUE TO MEDICAL REASON. 2. THE LEARNED CIT(A)-3, PUNE ERRED IN LAW AND ON F ACTS IN UPHOLDING THE ADDITION U/S 68 OF THE ITA, 1961 OF RS.4,00,000 /- FOR CASH DEPOSITED IN BANK OF MAHARASHTRA . THE L EARNED I-T AUTHORITIES OUGHT TO HAVE APPRECIATED THAT THE CASH DEPOSIT WAS AGAINST THE SALE MADE TO MR . GAJENDRA SINGH. 3. THE LEARNED CIT(A)-3, PUNE ERRED IN LAW AND ON F ACTS IN UPHOLDING THE ADDITION OF RS.1 , 02,000/- UNDER THE HEAD 'INCOME FROM OTHER SOURCES' FOR CONSIDERATION RECEIVED ON ENTERING INT O JV WITH BALAJI DEVELOPERS . THE LEARNED I-T AUTHORITIES OUGHT TO HAVE APPRECIAT ED THAT THE SAID CONSIDERATION WAS TO BE REFUNDED TO BALAJI DEVELOPERS AS THE JV AGREEMENT WAS CANCELLED SUBSEQUENTLY . 4. ALTERNATIVELY AND WITHOUT PREJUDICE TO GROUND NO . 3, THE LEARNED I-T AUTHORITIES ERRED IN LAW AND ON FACTS IN NOT RESTRI CTING THE ADDITION TO RS.51,000/- I . E. APPELLANT'S SHARE FOR CONSIDERATION RECEIVED ON ENTERING INTO JV WITH BALAJI DEVELOPERS. 3. ALL THE GROUNDS BEING INTER-CONNECTED ARE CONSIDERED TOGETHER. 4. ON THE DATE OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT APPLICATION WAS FILED. I THE REFORE 3 ITA NO.340/PUN/2019 PROCEED TO DISPOSE OF THE APPEAL EX-PARTE QUA THE ASSE SSEE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD.D.R. 5. THE CASE FILE REVEALS THAT THERE IS DELAY OF 206 DAYS IN FILING THE PRESENT APPEAL. ASSESSEE FILED AN AFFIDAVIT WHEREIN HE IN TER-ALIA SUBMITTED THAT THE DELAY OF 206 DAYS IN FILING THE PRESENT APPEAL OCCURRED DUE TO BONAFIDE MISTAKE AND IT IS PURELY UNINTEN TIONAL AND THEREFORE PRAYED THAT THE DELAY OF 206 DAYS BE C ONDONED. LD.D.R. DID NOT SERIOUSLY OBJECT TO THE PRAYER OF CONDONATION. 6. ON THE ISSUE OF CONDONATION OF DELAY OF APPEAL, I HAVE GO NE THROUGH THE PETITION FILED BY THE ASSESSEE AND HEARD TH E LD.D.R. AFTER CONSIDERING THE REASONS STATED IN THE AFFIDAVIT, I AM OF THE VIEW THAT THE DELAY IN FILING THE APPEAL HAS BEEN SATISFACTOR ILY EXPLAINED. IN VIEW OF THESE FACTS, I CONDONE THE DELAY AN D ADMIT THE APPEAL FOR HEARING. 7. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO NOTICE D THAT ASSESSEE HAD DEPOSITED RS.4,00,000/- IN HIS BANK ACCOUNT MAINTAINED WITH BANK OF MAHARASHTRA, WHICH IS STATED TO HA VE BEEN RECEIVED FROM MR. GAJENDRA SINGH AGAINST SALE BILL NO .6617 DT.22.05.2012. THE SUBMISSION OF ASSESSEE WAS NOT FOUND ACCEPTABLE TO THE AO AS THE ASSESSEE FAILED TO PROVE T HE SALE AND GENUINENESS OF PAYMENT BY PROVIDING DETAILS OR PRODUCING MR.GAJENDRA SINGH. AO ACCORDINGLY TREATED THE DEPOSIT OF RS.4 LACS AS UNEXPLAINED DEPOSIT AND ADDED IT TO THE INCOME OF THE ASSESSEE. 4 ITA NO.340/PUN/2019 AO FURTHER NOTICED THAT ASSESSEE HAD ENTERED INTO JOINT VENTURE AGREEMENT DT.27.09.2012 WITH M/S. BALAJI DEVELOPERS FOR GUJARAT COLONY LAND FOR A CONSIDERATION OF RS.54,91,000/- AND DUE TO BREACH OF CONTRACT BY BUILDER, JV WAS CANCELLED BY ASS ESSEE AND THERE WAS NO TRANSFER OF LAND AND ASSESSEE HAD WITHDRAW N THE CLAIM OF DEDUCTION U/S 54F OF THE ACT. HOWEVER AO ADDED RS.1,02,000/- RECEIVED BY THE ASSESSEE IN CASH TOWARDS DEPOSIT FOR THE AGREEMENT ON ACCOUNT OF INCOME FROM OTHER SOURCES. AGGRIEVED BY THE ORDER OF AO, ASSESSEE CARRIED THE MATT ER BEFORE LD.CIT(A), WHO VIDE EX-PARTE ORDER DISMISSED THE APPEAL OF ASSESSEE. AGGRIEVED BY THE ORDER OF LD.CIT(A), ASSESSEE IS NOW IN APPEAL BEFORE ME. 8. BEFORE ME, LD.D.R. SUPPORTED THE ORDER OF AO AND LD.CIT(A). 9. I HAVE HEARD THE LD.D.R. AND PERUSED THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT GROUND IS WITH RESPECT TO ADDIT IONS OF RS.4,00,000/- AND RS.1,02,000/- ON ACCOUNT OF UNEXPLAINED DEPOSIT OF CASH IN BANK AND INCOME FROM OTHER SOURCES, RESPECTIVELY. THE PERUSAL OF ORDER OF LD.CIT(A) REVEALS THA T LD.CIT(A) HAS PASSED AN EX-PARTE ORDER WITHOUT DECIDING THE ISSUE ON MERITS. I N VIEW OF THE WELL SETTLED PRINCIPLE OF NATURAL JUSTICE THAT SUFFICIENT OPPORTUNITY OF HEARING SHOULD BE AFFOR DED TO THE PARTIES AND NO PARTY SHOULD BE CONDEMNED UNHEARD, I AM OF THE VIEW THAT ONE MORE OPPORTUNITY BE GRANTED TO THE ASSESSEE TO PRESENT HIS CASE. I THEREFORE RESTORE THE MATTER BACK TO THE FILE OF LD.CIT(A) TO DECIDE THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. NEEDLESS TO STATE THAT LD.CIT(A) SHALL GRANT ADEQUATE OPP ORTUNITY OF 5 ITA NO.340/PUN/2019 HEARING TO BOTH THE PARTIES. IN VIEW OF MY DECISION TO RES TORE THE ISSUE TO LD.CIT(A), I AM NOT ADJUDICATING ON MERITS THE G ROUNDS OF THE APPEAL RAISED BY THE ASSESSEE. THUS, THE GROUNDS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THE 16 TH DAY OF APRIL, 2019. SD/- ( ANIL CHATURVEDI ) ' / ACCOUNTANT MEMBER PUNE; DATED : 16 TH APRIL, 2019. YAMINI #$%&'(' % / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5 6. CIT(A)-3, PUNE. PR. CIT-2, PUNE. '#$ %%&',) &', *+ / DR, ITAT, SMC PUNE; $-.// GUARD FILE. / BY ORDER // TRUE COPY // 012%3&4 / SR. PRIVATE SECRETARY ) &' , / ITAT, PUNE.