Salman Kureshi, Ghaziabad V. ITO WARD - 2(4), Ghaziabad

ITA 419/DEL/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 6484 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 22-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SANJAY PARASHAR
• Keywords: Set aside
• Section: 147; 68; 144; 250

Judgement Text

1 ITA No. 419/Del/2020 Salman Kureshi Vs. ITO IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC”: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA No. _419/DEL/2020 [Assessment Year: 2011-12 Salman kureshi S/o Chand, D-27, Sabji Mandi, Sahibabad, Ghaziabad. PAN- BECPK6289Q Vs Income-tax Officer, Ward-2(4), Ghaziabad. APPELLANT RESPONDENT Appellant by Sh. Anoop Sharma Adv. & Sh. Sanjay Parashar, Adv. Respondent by Sh. Om Prakash, Sr. DR Date of hearing 10.08.2022 Date of pronouncement 16.08.2022 O R D E R PER KUL BHARAT, JM: This appeal, by the assessee, is directed against the order of the learned Commissioner of Income-tax (Appeals), Ghaziabad, dated 29.11.2019, pertaining to the assessment year 2011-12. The assessee has raised following grounds of appeal: “1) That on the facts and in the circumstances of the case and in law, the order passed by Learned Income Tax Officer, Ward-2(4), Ghaziabad (Ld. AO) under section 144 read with section 147 and order passed by Learned Commissioner of Income Tax (Appeals), Ghaziabad [Ld. CIT(A)] under section 250 of the Income-tax Act, 1961 (the Act), is wrong and bad in law. 2 ITA No. 419/Del/2020 Salman Kureshi Vs. ITO 2) That on the facts and circumstances of the case and in law, the assessment reopened by the Ld. AO and as confirmed by Ld. CIT(A) lacks mandatory conditions prescribed under section 147 of the Act, thereby, leading to invalid jurisdiction and illegal reassessment being made which is liable to be quashed. 3) That on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in not accepting the appeal filed by the appellant against the assessment order passed by Ld. AO. In doing so, the Ld. CIT(A) erred in not condoning the delay in filing of appeal by the appellant. 4) That on the facts and circumstances of the case and in law, the Ld. AO erred in determining the addition under section 68 of the Act based on factually erroneous premises and built upon surmises and conjectures. 5) That on the facts and circumstances of the case and in law, the Ld. AO erred in determining the addition of INR 17,63,200 under section 68 for the cash deposited, without appreciating the fact that the same has been accounted for in the income tax return filed by the appellant. 6) Without prejudice to the above grounds, the Ld. AO erred in levy of tax on cash deposits of INR 17,63,200 without appreciating that the entire cash has been considered while arriving at the taxable income of the appellant and accordingly, the addition determined by Ld. AO is not tenable as the same tantamount to double taxation of income. 7) Without prejudice to the abovementioned grounds, the appellant has not been served the notices and assessment order in the manner prescribed under Section 282 of the Act, thus, the assessment framed under the Act is time barred and hence null and void and liable to be quashed. 8) That on the facts and circumstances of the case and in law, the Ld. AO and Ld. CIT(A) erred in not providing appropriate opportunity to the appellant to furnish the submissions against the additions determined in the orders. 9) That the Ld. AO erred on facts and in law in initiating penalty proceedings under section 271(l)(c) of the Act. 10) That the Ld. AO has erred in levying interest under section 234A and 234B of the Act. 3 ITA No. 419/Del/2020 Salman Kureshi Vs. ITO 11) The above grounds of appeal are mutually exclusive and without prejudice to each other. 12) The appellant craves leave to add, amend, alter or vary, any of the aforesaid grounds of appeal before or at the time of hearing of the appeal.” 2. At the outset learned counsel for the assessee pointed out that the appeal of the assessee was dismissed in limine by the learned CIT(Appeals) on account of delay in filing of the appeal for 17 days. He submitted that the learned CIT(Appeals) ought to have condoned the delay and given opportunity to the assessee. He further submitted that the issue of the reopening is squarely covered in favour of the assessee by various judicial pronouncements and the assessee has a good case on merits and there is every likelihood of success. He further submitted that the assessee has also filed an application under Rule 29 of the Income-tax Rules, 1962. He, therefore, prayed that the impugned order may be set aside and the grounds of appeal be restored to the file of the learned CIT(Appeals) to decide on merits. 3. On the contrary learned Sr. DR opposed the submissions and supported the orders of the authorities below. 4. I have heard rival submissions and perused the material available on record. The learned CIT(Appeals) has dismissed the appeal of the assessee by observing as under: 4 ITA No. 419/Del/2020 Salman Kureshi Vs. ITO 2.1 Examination of facts reveals that the notice of demand was served on 17.12.2018 and the appeal was e-filed on 04.02.2019 which is delayed by 17 days. In absence of any reply it is held that there is unjustifiable delay in filing the appeal. Condonation of delay is not a matter of right since appellant has failed to show reasons of delay on last day of limitation and thereafter for each day, it is felt that appellant has not acted with reasonable diligence in prosecuting the appeal. Reliance in this regard is placed on decision in the case of Rankak & Ors, Vs Rewa Coalfields Ltd. AIR 1962 SC 361, JCIT vs Tractors & Farm Equipments Ltd. (ITAT, Chennai-TM) 104 ITD 149, Madhu Dadha vs ACIT (Mad) 317 ITR 458. Moreover, to avoid duplicate filing of appeal as per Rule 45, the original demand notice has not been furnished by the appellant inspite of the said defect being pointed out to him. Considering above facts and circumstances this appeal preferred by the appellant is treated as non-est being defective.” ' 5. From the above finding it is clear that the learned CIT(Appeals) has not given any finding on the merit of the case and the appeal has been dismissed purely on the basis of limitation. It is argued that there was a reasonable cause for not approaching the learned CIT(Appeals) within the time prescribed under the Act. It is stated that due to illness of the assessee, the appeal could not be filed within the prescribed time. An affidavit by the assessee duly notarized has been placed on record, affirming the submissions. Therefore, considering the fact that the assessee had been suffering from ailment and a medical certificate is duly placed on record, I am of the view that there was reasonable cause for filing the appeal late at the stage of learned CIT(Appeals). I, therefore, condone the delay and restore the grounds of appeal to the file of the learned CIT(Appeals) for deciding the appeal 5 ITA No. 419/Del/2020 Salman Kureshi Vs. ITO on merit. The impugned order is set aside and the grounds raised in this appeal are allowed for statistical purposes. 6. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in open court on 16 th August, 2022. Sd/- (KUL BHARAT) JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI Draft dictated 12.08.2022 Draft placed before author 12.08.2022 Approved Draft comes to the Sr. PS/PS Order signed and pronounced on File comes to P.S. File sent to the Bench Clerk Date on which file goes to the AR Date on which file goes to the Head Clerk Date of dispatch of Order Date of uploading on the website