Nivruti Gyanuji Gaikwad, Hingoli V. Income-tax Officer, Ward & TPS, Hingoli

ITA 408/PUN/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0637 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-07-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 13-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SACHIN Y JAWALE
• Assessee Lawyers: KETAN DHOOT
• Keywords: Unexplained cash credit; Opportunity of being heard; Principle of natural justice; Peak credit; Condonation of delay
• Section: 143(3); 48; 131

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO.408/PUN/2019 / ASSESSMENT YEAR : 2010-11 NIVRUTI GYANUJI GAIKWAD, PENSSIONPURA, KATKE GALLI, HINGOLI-431513. PAN : AISPG4568P . /APPELLANT VS. ITO, WARD & TPS, HINGOLI. . / RESPONDENT / APPELLANT BY : SHRI KETAN DHOOT / RESPONDENT BY : SHRI SACHIN Y. JAWALE / DATE OF HEARING : 18.12.2019 / DATE OF PRONOUNCEMENT: 18.12.2019 / ORDER PER D. KARUNAKARA RAO, AM : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A)-1, AURANGABAD DATED 15.10.2018 FOR THE ASSESSMENT YEAR 2010-11. PRELIMINARY ISSUE - CONDONATION OF DELAY 2. BEFORE ME, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL COULD NOT BE FILED IN TIME AND THE SAID APPEAL IS NOW FILED WITH THE DELAY OF 54 DAYS . IN THIS REGARD, LD. COUNSEL FOR THE ASSESSEE FILED AN AFFIDAVIT STATING THE REASONS FOR NON-FILING THE APPEAL OF THE ASSESSEE IN TIME. FOR THE SAKE OF COMPLETENESS, THE RELEVANT PARA OF THE SAID AFFIDAVIT IS EXTRACTED HEREUNDER :- ITA NO.408/PUN/2019 - 2 - 1. I AM A FARMER AND HAVE BEEN FULL TIME ENGAGED IN DOING AGRICULTURAL ACTIVITIES ON CONTRACTED LAND. SOMETIMES, I ALSO DO CONSTRUCTION ACTIVITIES, ON INDIVIDUAL CONTRACT BASIS, AT A SMALL LEVEL. 2. DURING THE A.Y. 2010-11, I CARRIED OUT BOTH THE ACTIVITIES I.E. AGRICULTURAL AS WELL AS SMALL CONSTRUCTION WORK ON CONTRACT BASIS. HOWEVER, I DID NOT FILE THE INCOME TAX RETURN AS MAJORITY OF MY INCOME PERTAINED TO AGRICULTURAL ACTIVITY WHICH WAS EXEMPT FROM TAX. 3. IT WAS ONLY WHEN I RECEIVED NOTICE U/S 148, I CONTACTED TAX CONSULTANT AT HINGOLI AND ON THE BASIS OF HIS ADVICE, GOT MY RETURN OF INCOME FILED IN RESPONSE TO NOTICE U/S 148, BY DECLARING TOTAL INCOME OF RS. 207,280/- 4. PROCEEDINGS U/S 143(3) R.W.S. 147 OF THE ITA, 1961 FOR A.Y. 2010-11 WERE COMPLETED BY THE LEARNED ITO, WARD & TPS, HINGOLI (AO) AND ORDER WAS PASSED ON 28/12/2017 BY MAKING AN ADDITION OF RS. 750,000/- TO THE RETURNED INCOME FILED BY ME, ON ACCOUNT OF UNEXPLAINED CASH CREDITS IN THE BANK ACCOUNT. 5. BEING AGGRIEVED BY THE ORDER OF LEARNED AO, AN APPEAL WAS FILED BEFORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL)-1, AURANGABAD (CIT-A) WHO UPHELD THE VIEW TAKEN BY THE AO AND ACCORDINGLY PASSED THE ORDER ON 15-10-2018 WHICH WAS RECEIVED BY ME ON 19-11-2018. 6. SINCE I HAVE BEEN ADVISED THAT THERE IS MERIT IN FILING OF APPEAL BEFORE THE HONBLE ITAT, FORM 36 WAS DULY PREPARED, SIGNED AND SENT TO TAX CONSULTANT AT HINGOLI WELL WITHIN TIME, WHO IN TURN COURIERED THE SETS TO COUNSEL AT PUNE FOR VERIFICATION AND ONWARD FILING OF THE SAME AT THE OFFICE OF HONBLE ITAT, PUNE. 7. IN THE MEANTIME, I CAME TO KNOW FROM COUNSEL AT PUNE THAT FORM 36 SIGNED BY ME WAS IN OLD FORMAT AND SAME NEEDS TO BE FILED IN NEW FORMAT NOTIFIED RECENTLY. ACCORDINGLY, CORRECTED FORM 36 WAS PREPARED, SIGNED AND SENT TO COUNSEL AT PUNE FOR ONWARD FILING OF THE SAME. 8. SINCE I WAS RECENTLY OPERATED FOR KIDNEY STONE AND THUS, WAS NOT CARRYING A GOOD HEALTH, I COULD NOT RESPOND TO COUNSELS QUICKLY. FURTHER, SINCE, I AM RESIDING AT HINGOLI, WHICH IS IN MARATHWADA, IT TOOK LITTLE LONGER TIME IN COORDINATION WITH THE COUNSEL AT PUNE. 9. IN THE MEANTIME, PRECIOUS TIME TO PREFER APPEAL WAS ELAPSED. IN ALL THIS PROCESS, DELAY OF ABOUT 48 DAYS HAS CREPT INTO THE MATTER UNFORTUNATELY. THE SAID DELAY CREPT IN DUE TO MERE CONFUSION IN OLD AND NEW FORM 36 FOR FILING OF APPEAL, ILL-HEALTH AND TIME TAKEN FOR COORDINATION WITH THE COUNSEL AT PUNE. 10. IT IS SINCERELY SUBMITTED THAT THE SAID DELAY OF ABOUT 46 DAYS WAS PURELY UN-INTENTIONAL. 3. FROM THE ABOVE, IT IS EVIDENT THAT THERE IS CONFUSION WITH REFERENCE TO THE NEW FORMAT OF FORM NO.36. CONSIDERING THE ABOVE REASONS GIVEN BY THE ASSESSEE IN THE AFFIDAVIT I FIND IT IS A FIT CASE FOR CONDONING THE DELAY OF 54 DAYS. AFTER CONDONING THE DELAY, I PROCEED TO ADJUDICATE THE APPEAL OF THE ASSESSEE IN THE FOLLOWING PARAGRAPHS. 4. BEFORE ME, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS APPEAL NEEDS TO BE REMANDED TO THE FILE OF THE ASSESSING OFFICER. ITA NO.408/PUN/2019 - 3 - NARRATING THE BRIEF FACTS, LD. COUNSEL FOR THE ASSESSEE MENTIONED THAT THIS IS A CASE WHERE THE ASSESSEES BANK ACCOUNT RECORDED CASH DEPOSITS TO THE TUNE OF RS.32,77,000/-. ASSESSEE EXPLAINED THE SOURCES OF THE SAME WITH THE HELP OF AGRICULTURAL INCOME AND CONTRACT RECEIPTS. THE ASSESSEE ENGAGED IN THE CONTRACT ACTIVITIES AND CONSTRUCTED A COUPLE OF BUILDINGS FOR TWO OWNERS NAMELY (I) SHRI MAKINKHAN OSMANKHAN PATHAN AND (II) SHRI MADHUKAR MANIKRAO DESHMUKH. AFTER CONDUCTING PEAK CREDIT ANALYSIS, THE ASSESSING OFFICER MADE ADDITION OF RS.7,50,000/- ONLY. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER ISSUED SUMMONS U/S 131 OF THE ACT TO THE SAID OWNERS OF THE BUILDINGS AND ATTEMPTS WERE NOT SUCCESSFUL. IN THE LIGHT OF THE NON-COOPERATION OF THE WITNESSES OF THE ASSESSEE, THE ASSESSING OFFICER PROCEEDED TO MAKE THE SAID ADDITION OF RS.7,50,000/-. THE ASSESSEE COULD NOT IMPROVE HIS CASE DURING THE FIRST APPELLATE PROCEEDINGS AND THEREFORE, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. BEFORE ME, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE MENTIONED THAT THE ASSESSEE IS READY TO PRODUCE THE SAID PARTIES IF AN OPPORTUNITY IS GRANTED ONE MORE TIME. FURTHER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS AGRICULTURAL INCOME ALSO TO ACCOUNT FOR THE SAID CASH DEPOSITS. 6. ON HEARING BOTH THE SIDES AND WITHOUT GOING INTO THE MERITS, I AM OF THE OPINION THAT GRANTING OF OPPORTUNITY TO THE ASSESSEE IS IN THE INTEREST OF ADMINISTRATION OF JUSTICE. THEREFORE, AS REQUESTED BY THE ASSESSEES COUNSEL, ALL THE GROUNDS RAISED BY THE ASSESSEE IN THE APPEAL ARE REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION. THE ASSESSING ITA NO.408/PUN/2019 - 4 - OFFICER IS DIRECTED TO EXAMINE THE PARTIES MENTIONED ABOVE BEFORE ANY ADDITION IS REPEATED. WITH THE CHANGE OF FACTS, IT IS NOW THE DUTY OF THE ASSESSEE TO PRODUCE THE WITNESSES TO EXPLAIN THE CASH DEPOSITS. THE ASSESSING OFFICER SHALL GRANT REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH SET PRINCIPLES OF NATURAL JUSTICE. THUS, ALL THE GROUNDS RAISED BY THE ASSESSEE IN THIS APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 18 TH DAY OF DECEMBER, 2019. SD/- (D. KARUNAKARA RAO) / ACCOUNTANT MEMBER / PUNE; DATED : 18 TH DECEMBER, 2019. SUJEET / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT(A)-1, AURANGABAD; 4. THE PR. CIT-1, AURANGABAD; 5. , , - / DR SMC, ITAT, PUNE; 6. / GUARD FILE. / BY ORDER, //TRUE COPY// SENIOR PRIVATE SECRETARY , / ITAT, PUNE