Bharat Bhushan, Ghaziabad V. ITO, Ward- 1(5), Ghaziabad

ITA 3811/DEL/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2896 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST S DATED PASSED
• Keywords: Principle of natural justice; Condonation of delay
• Section: 68

Judgement Text

1 ITA NOS. 3811 & 3812/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER A N D MS. SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A. NOS. 3811 & 3812/DEL/2019 (A.Y. 2008-09) (THROUGH VIDEO CONFERENCING) SHRI BHARAT BHUSHAN, CH. NO. 206-207, ANSAL SATYAM, RDC RAJNAGAR, GHAZIABAD (U.P.) PAN: AEFPB3317N (APPELLANT) VS ITO, WARD : 1 (5) GHAZIABAD. UTTAR PRADESH. (RESPONDENT) O R D E R PER SUCHITRA KAMBLE, JM : THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDERS DATED 19/02/2019 PASSED BY CIT (APPEALS), GHAZIABAD, FOR ASSESSMENT YEAR 2008- 09. THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF, FOR THE SAKE OF CONVENIENCE, BY THIS CONSOLIDATED ORDER. 2. THE COMMON GROUNDS IN BOTH THE APPEALS ARE AS UNDER:- 1. BECAUSE, ORDER OF LD. CIT (A) IS BAD IN LAW AND IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE; 2. BECAUSE, LD. CIT (APPEALS) ERRED IN DENYING TO CONDONE THE DELAY WHICH WAS DULY EXPLAINED, AS ORDER WAS NOT RECEIVED AND APPEAL IS APPELLANT BY SHRI AKHILESH KUMAR, ADV.; RESPONDENT BY SHRI RAJESH KUMAR, SR.D.R. DATE OF HEARING 17.11.2020 DATE OF PRONOUNCEMENT 23.11.2020 2 ITA NOS. 3811 & 3812/DEL/2019 FILED ONLY AFTER COMING INTO THE KNOWLEDGE OF PASSING SUCH ORDER, ONLY AFTER PROCURING CERTIFIED COPY OF ORDER, HENCE LD. LOWER AUTHORITY FAILED TO EXERCISE DISCRETION JUDICIALLY; 3. BECAUSE, LD. CIT (APPEALS) ISSUED ONLY A GENERAL DEFECTIVE NOTICE TO FILE REPLY ON DEFECTS BUT NO PERSONAL HEARING IS EVER PROVIDED ON THE ISSUE; 4. BECAUSE, LD. CIT (APPEALS) FAILED TO APPRECIATE THAT A SYMPATHETIC APPROACH SHOULD HAVE BEEN TAKEN BY AUTHORITIES IN FAVOUR OF SUBSTANTIAL JUSTICE AS HELD BY APEX COURT IN MANY CASES. 3. AS PER AR INFORMATION THE ASSESSING OFFICER OBSERVED THAT ASSESSEE HAS DEPOSITED CASH AMOUNT OF RS.20,61,400/- IN HIS S.B. ACCOUNT IN BANK OF INDIA, GHAZIABAD, DURING FINANCIAL YEAR 2007-08. THE ASSESSING OFFICER PASSED ASSESSMENT ORDER DATED 4.01.2016 UNDER SECTION 144/147 OF THE INCOME TAX ACT, 1961 (THE ACT) THEREBY ASSESSING THE INCOME OF THE ASSESSEE AT RS.20,61,000/- IN RESPECT OF ADDITION TO UN-EXPLAINED CASH DEPOSITS UNDER SECTION 68 OF THE ACT. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE FILED APPEALS BEFORE THE CIT (APPEALS). THE CIT (A) DISMISSED THE APPEALS IN LIMINE. 5. THE LD. AUTHORIZED REPRESENTATIVE SUBMITTED THAT THERE WAS A DELAY OF 18 MONTHS IN FILING THE APPEAL BEFORE THE CIT (APPEALS) THEREBY EXPLAINING THAT THE NON-RECEIPT OF PENALTY ORDER TO THE ASSESSEE WAS THE SOLE CAUSE FOR DELAY IN FILING THE APPEAL. THEREFORE, THE LD. AR SUBMITTED THAT THE DELAY MAY BE CONDONED AND THE CIT (APPEALS) BE DIRECTED TO HEAR THE APPEAL ON MERIT. 6. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT (APPEALS). 3 ITA NOS. 3811 & 3812/DEL/2019 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT CAN BE SEEN THAT THE ASSESSEE HAS FILED CONDONATION OF DELAY APPLICATION BEFORE THE CIT (APPEALS) THEREBY EXPLAINING THE DELAY DUE TO THE CAUSE OF NON-RECEIPT OF PENALTY ORDER WITHIN THE STIPULATED TIME. THE REASON FOR CONDONATION OF DELAY BEFORE THE CIT (APPEALS) WAS GENUINE. THEREFORE, THE DELAY IS CONDONED AND IT WILL BE APPROPRIATE TO REMAND BACK THE ENTIRE ISSUE TO THE FILE OF THE CIT (APPEALS) FOR DECIDING BOTH THE APPEALS OF THE ASSESSEE ON MERIT. THUS, WE ARE REMANDING BACK THE ENTIRE ISSUE TO THE FILE OF THE CIT (APPEALS) FOR DECIDING THE APPEALS ON MERIT. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN AN OPPORTUNITY OF HEARING BY FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. THUS, THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED, FOR STATISTICAL PURPOSE. 8. IN RESULT, APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF NOVEMBER, 2020 SD/- SD/- ( R. K. PANDA ) ( SUCHITRA KAMBLE ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 23/11/2020 *MEHTA* COPY FORWARDED TO :- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (APPEALS) 5. DR: ITAT 4 ITA NOS. 3811 & 3812/DEL/2019 ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 1 8.1 1 .2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 18.11.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 2 3 .1 1 .2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 2 3 .1 1 .2020 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 2 3 .1 1 .2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 2 3 .1 1 .2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 3 .1 1 .2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 3 .1 1 .2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK