Munni, Noida V. ITO WARD 1(4), Ghaziabad

ITA 3420/DEL/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 7344 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Assessment Year: 2008-2009
• Appeal Filed On: 17-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 148; 144; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC-1 : NEW DELHI (Through Virtual Hearing) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA No.3420/Del/2019 Assessment Year: 2008-09 Munni, H.No.26, Sharfabad, Sector-73, Noida, Uttar Pradesh. PAN: ELBPM5603R Vs. ITO, Ward-1(4), Ghaziabad. (Appellant) (Respondent) Assessee by : Shri Vineet Garg, Advocate Revenue by : Shri Om Prakash, Sr.DR Date of Hearing : 15.11.2021 Date of Pronouncement : 29.11.2021 ORDER This appeal filed by the assessee is directed against the order dated 30.11.2018 of the CIT(A), Ghaziabad, relating to Assessment Year 2008-09. 2. Although a number of grounds have been raised by the assessee, these all relate to the order of the CIT(A) in dismissing the appeal filed by the assessee as barred by limitation and thereby sustaining the addition of Rs.39,70,500/- made by the AO u/s 69A of the IT Act. ITA No.3420/Del/2019 2 3. Facts of the case, in brief, are that the assessee is a non-filer of income-tax return. On the basis of the AIR information that the assessee has deposited cash of Rs.39,70,500/- in the bank account maintained with Bank of India, GT Road, Ghaziabad, the AO issued a query letter to the assessee on 28 th December, 2012, 20.10.2014 and 16 th December, 2014 to furnish the information in respect of cash deposits, copy of income-tax return and PAN, etc. The assessee, in response to the same, submitted that she has sold an immovable property and deposited cash in her savings bank account out of above sale. At the request of the assessee, the date was adjourned to 02.01.2015 to furnish the bank statement and copy of registered sale deed of the property sold. Since nothing was furnished to substantiate the cash deposit of 39,70,500/-, the AO, after recording reasons, reopened the case u/s 147 of the Act and issued notice u/s 148 of the Act. During the assessment proceedings, due to non-appearance of the assessee to substantiate the cash deposit of Rs.39,70,500/-, the AO completed the assessment u/s 144 of the Act and made addition of Rs.39,70,500/- to the total income of the assessee u/s 69A of the Act. Since there was a delay of approximately two years in filing of the appeal before the CIT(A), the ld. CIT(A) dismissed the appeal filed by the assessee as nonest being defective by observing as under:- ITA No.3420/Del/2019 3 ITA No.3420/Del/2019 4 4. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal. 5. The ld. Counsel for the assessee submitted that the assessee is a farmer having income from agricultural operations only and there is no other sources of income liable to tax under Income-tax Act and, therefore, no return of income was filed for the relevant assessment year. Since the cash deposit was out of sale proceeds of ancestral agricultural land in the village and the sale deed was not readily available with the assessee at the relevant time, the same could not be produced before the AO. He submitted that the assessee is an illiterate farmer and is not aware of the intricacies of the law. He submitted that the AO completed the assessment, but, the assessment order and notice of demand was never served on the assessee. These documents had to be obtained on receipt of notice u/s 2(21) and after obtaining the certified copy from the AO, the assessee filed the appeal before the CIT(A) within 30 days from the date of certified copy. He submitted that the delay in the instant case in not filing the appeal in time is not ITA No.3420/Del/2019 5 attributable to the assessee since the assessee was never served with the assessment order. Referring to the decision of the Hon’ble Supreme Court in the case of Collector Land Acquisition vs. Mst. Katiji & Ors, reported in 1987 AIR 1353, he submitted that the delay should be condoned and the matter should be restored to the file of the AO for giving an opportunity to substantiate her case. 6. I have considered the rival arguments made by both the sides and perused the record. I find, due to non-substantiation of the deposit of Rs.39,70,500/- in the savings bank account maintained by the assessee, the AO made addition of the same and the order passed u/s 144/147 of the IT Act. I find, the ld.CIT(A) dismissed the appeal treating the same as nonest and defective due to delay in filing of the appeal by more than two years and the assessee and for the reason that the assessee has not acted with reasonable diligence in prosecuting the appeal. I find, the Hon’ble Supreme Court in the case of Collector Land Acquisition vs. Mst. Katiji & Ors. (supra), while condoning the delay, laid down the following principles:- “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the ITA No.3420/Del/2019 6 other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.” 7. I am of the considered opinion that the ld.CIT(A) should not have dismissed the appeal on account of delay in filing of the appeal. However, considering the fact that the assessment order was passed u/s 144 of the IT act and the ld. Counsel for the assessee is now giving an undertaking that the assessee will appear before the AO and cooperate in completion of the assessment and produce the necessary details for completion of the assessment, I deem it proper to restore the issue to the file of the AO with a direction to grant one last opportunity to the assessee to substantiate her case and decide the issue as per fact and law. The assessee is also hereby directed to appear before the AO and substantiate her case without seeking any adjournment under any pretext failing which the AO is at liberty to pass appropriate order as per law. I hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. ITA No.3420/Del/2019 7 8. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 29.11.2021. Sd/- (R.K. PANDA) ACCOUNTANT MEMBER Dated: 29 th November, 2021. dk Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, New Delhi