Jatinbhai Vallabhbhai Hirpara, Rajkot V. Income Tax Officer , Rajkot

ITA 397/RJT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0371 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 03-12-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHISH KUMAR PANDEY
• Keywords: Unexplained investment; Reasonable cause; Condonation of delay; Set aside
• Section: 69; 143(3); 250; 69A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./ITA No. 397/RJT/2023 (Assessment Year: 2012-13) (Hybrid Hearing) Jatinbhai Vallabhbhai Hirpara, “Tirth” Jay Park, Nanamava Main Road Rajkot, Rajkot-360002 Vs. The ITO, Ward-4, Morbi èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAGPH5951D (अपीलाथȸ/Appellant) (Ĥ×यथȸ/Respondent) Ǔनधा[ǐरतीकȧओरसे/Assessee by : Shri Rashmin Vekariya, AR राजèवकȧओरसे/Revenue by : Shri Ashish Kumar Pandey, Sr. DR स ु नवाईकȧतारȣख/ Date of Hearing : 18/07/2024 घोषणाकȧतारȣख/Date of Pronouncement : 07/08/2024 आदेश/ORDER PER DINESH MOHAN SINHA, JM: Captioned appeal filed by the Assessee for A.Y. 2012-13, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)/National Faceless Appeal Centre(NFAC), Delhi, dated 29.09.2023 under section 250 of the Income Tax Act, 1961 (in short, ‘the Act’). 2. The Grounds of appeal raised by the assessee are as follows:- “1. The Ld. Commissioner of Income Tax (Appeals) (hereinafter referred to as the "CIT(A)") erred on facts as also in law in treating appeal inadmissible. The delay in filing appeal may kindly be condoned and grounds of appeal may kindly be decided on merits. I.T.A No. 397/Rjt/2023 A.Y. 2012-13 Shri Jatinbhai Vallabhbhai Hirpara vs. ITO 2 2. The Ld. CIT(A) erred in confirming addition of Rs. 7,50,000/- made u/s. 69 of the Act being cash payment made for purchase of property. The addition may kindly be deleted. 3. The Ld. CIT(A) erred in confirming addition of Rs. 25,13,000/- made u/s. 69A of the Act being cash deposits in bank account. The addition may kindly be deleted. 4. The Ld. CIT(A) erred in confirming addition of Rs. 54,917/- being accrued interest from M/s. Dewan Housing Finance Corporation Limited. The addition may kindly be deleted.” 3. That the assessee has filed return of income declaring total income of Rs. 4,93,130/- for A.Y. 2012-13. The case has been reopened and subsequently the return in compliance to the notice has been filed. The case was reopened on account of huge cash deposit and investment in purchase of immoveable property. That finally the assessment was framed with the observation that addition of Rs. 7,50,000/- is made to the total income of the assessee treating the same as unexplained investment u/s. 69 of the Act in the absence of details about the source of cash payment for the purchase of immovable property. That the addition of Rs. 25,13,000/- is made as unexplained money u/s. 69 of the Act in absence of details of cash deposit. That the addition of Rs. 54,517/- is made on account of income from other sources since the assessee has not shown the interest income in the return filed by the assessee. 4. The assessee has filed appeal before the Ld. CIT(A) and the ld. CIT(A) has issued three notices for hearing on 21 st January, 2021, 15 th Sep, 2013 and 29 th Sep, 2023. In response to the notices, the appellant neither furnished any reason for not furnishing the supporting evidences. The I.T.A No. 397/Rjt/2023 A.Y. 2012-13 Shri Jatinbhai Vallabhbhai Hirpara vs. ITO 3 assessee failed to substantiate his grounds of appeal with evidences and submissions. The appeal has been filed late by 46 days before the ld. CIT(A). Though, a part of the period of delay, is covered by the direction of the Hon'ble Supreme Court issued on account of pandemic, however, the assessee was required to explain each day of delay of the remaining period of 46 days. 4.1 In the case of Vishwabharati Mutually Aided Cooperative Credit Society Ltd vs. Income Tax Officer in ITA Nos 360 to 364/Hyd/2022 for the A.Ys 2010-11, 2011-12, and 2013-14 to 2015-16 dated 13.02.2023 wherein the Tribunal in Para 14 & 15 held as under:- "14. Further, the assessee's reasons in the condonation petition do not come under reasonable cause. As prescribed under the Act, for condonation of delay and the explanation given by the assessee for delay is not proper and casual in nature. The reasons given by the assessee are devoid of any merit and not sustainable in the eyes of law. The law requires the assessee to be vigilant and careful in prosecuting its rights under the Act. Considering the totality of the facts and circumstances of the case and the conduct of the assessee, we do not find any reason to entertain the present appeal as the same is barred by limitation. 15. We also draw strength from the decision of Hon'ble Supreme Court in the case of Majji Sannemma Sanyasirao Vs Reddy Sridevi and others (Civil Appeal No.7696 of 2021 dt. 16.12.2021 relied upon by the ld. DR, wherein the Hon'ble Supreme Court dismissed the condonation petition. The facts of this case are identical to the facts of the present case" 4.2 The Hon'ble Supreme Court at Para 6.2 had reproduced the facts of the case to the following effect: “6.2 We have gone through the averments in the application for the condonation of delay. There is no sufficient explanation for the period from 15.03.2017 till the Second Appeal was preferred in the year 2021. In the application seeking condonation of delay it was stated that she is aged 45 years and was looking after entire litigation and that she was suffering from health issues and she had fallen sick from 01.01.2017 to 15.03.2017 and she was advised to take bed rest for the said period. However, there is no explanation for the I.T.A No. 397/Rjt/2023 A.Y. 2012-13 Shri Jatinbhai Vallabhbhai Hirpara vs. ITO 4 period after 15.03.2017. Thus, the period of delay from 15.03.2017 till the Second Appeal was filed in the year 2021 has not at all been explained. Therefore, the High Court has not exercised the discretion judiciously.” 5. The assessee is in appeal before us. On account of delay in filing the appeal before the ld. CIT(A), the assessee filed an affidavit stating the reasons for delay as under:- “1. That assessment in my case for AY 2012-13 was completed u/s 143(3) of the Income Tax Act, 1961 ["Act'] on 30 12.2019 manually. I did not receive the assessment order. 2. Later on during corona pandemic somewhere in the month of June 2020 my bank account was frozen by the Income Tax Department. On being enquired with the department, the assessing officer informed that assessment order is passed and demand was raised and the order sent through post was returned. 3. Therefore immediately on 22.06.2020, I had requested to provide assessment order to take further action. 4. Consequently the AO provided the original assessment order along with demand notice on 22.06.2020. After receipt of the order the appeal before Hon'ble Commissioner of Income Tax (Appeal) was filed on 10.07.2020. 5. I once again submit that I did not receive the assessment order and demand notice in the month of January. The order was received on 22.06.2020.” 5.1 The A.R. of the assessee submitted non-appearance before the ld. CIT(A) is that there is no notices served on the assessee. As per records, the notice was issued on 15 th Sep, 2023 and order passed on 29th Sep, 2023 within 15 days of the hearing of the case. The appellant has made a request that the details of notices may kindly be sent on email [e-mail] and further requested for one more opportunity to be given to explain the case before the ld. CIT(A). 5.2 On the other hand, ld. D.R. heavily relied on the order of ld. CIT(A) wherein three opportunities were given to the assessee as hearing notices dated 21-01-2021, 15-09-2023 and 22-09-2023 were issued to the assessee, all remained un-complied with. The ld. CIT(A) has rightly dismissed the I.T.A No. 397/Rjt/2023 A.Y. 2012-13 Shri Jatinbhai Vallabhbhai Hirpara vs. ITO 5 appeal of the petitioner stating that appeal is rendered as inadmissible. Hence stands dismissed. 5.3 In view of the above, we find that the delay in filing the appeal by the assessee before the ld. CIT(A) is neither deliberate nor due to any negligence, therefore, the delay caused due to having bonafide reasons and circumstances beyond the control of the assessee. In the interest of justice, and equity, delay in filing the appeal before the ld. CIT(A) is hereby condoned. 6. We have heard both the parties and perused the record and gone through the submission. We noted down that the delay in filing the appeal before the ld. CIT(A) was because of the reasons as noted that the assessee is 45 years of age, looking into entire litigation work and suffering from several diseases. We also noted that the assessee could not comply because of the non-receipt of notice for hearing. We also noted that the assessee has made a request for to send the notice on given email address. In view of the above, we consider that the assessee should not be penalized because of delay and also non-appearance before the ld. CIT(A) through website on the date fixed for hearing. Therefore, we are of the view that one more opportunity should be given to the assessee to present his case before the Ld. CIT(A). Therefore, we set aside the order of the ld. CIT(A) and remit the matter back to the file of ld. CIT(A) for fresh adjudication on merit after giving due opportunity to the assessee of being heard. We direct the assessee to submit relevant details/documents/evidences as required by the ld. CIT(A) I.T.A No. 397/Rjt/2023 A.Y. 2012-13 Shri Jatinbhai Vallabhbhai Hirpara vs. ITO 6 for disposal of the assessee. The ld. A.R. has assured for proper compliances. 7. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 07-08-2024 Sd/- Sd/- (A. L. SAINI) (DINESH MOHAN SINHA) ACCOUNTANT MEMBER JUDICIAL MEMBER Rajkot Dated: 07/08/2024 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Rajkot 6. Guard file. By order/आदेश से, Assistant Registrar ITAT, Rajkot