Vipul Jain, Indore V. The Income Tax Officer, 5(2), Indore, Indore

ITA 431/Ind/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7624 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-04-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 02-11-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 144; 5(2); 234B; 69A

Judgement Text

आयकर अपील य अ धकरण, इंदौर यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER ITA No.431/Ind/2023 (Assessment Year: 2017-18) Vipul Jain 18, Ganesh Colony, Rambag MP Vs. ITO, 5(2) Indore (Appellant / Assessee) (Respondent/ Revenue) PAN: AGNPJ8206E Assessee by Shri S.N. Agrawal, AR Revenue by Shri Ashish Porwal, Sr. DR Date of Hearing 24.04.2024 Date of Pronouncement 29.04.2024 O R D E R Per Vijay Pal Rao, JM : This appeal by assessee is directed against the order dated 28.04.2023 of the Commissioner of Income Tax (Appeal), National Faceless Appeal Centre, Delhi for A.Y.2017-18. 2. There is a delay of 129 days in filing the present appeal. The assesse has filed an application for condonation of delay which is supported by an affidavit. The Ld. AR of the assessee has submitted that the impugned order was passed by the CIT(A) on 28 th April 2023 and just one day after the grandfather of the assessee expired ITANo.431/Ind/2023 Vipul Jain Page 2 of 7 on 29 th April 2023. He has thus submitted that due to last rites and ceremonies of the grandfather the assessee could not check the email and therefore, the impugned order of CIT(A) did not come to the knowledge of the assessee. Ld. AR has referred to the death certificate of grandfather of the assessee attached with the application for condonation of delay and submitted that due to demise of the grandfather of the assessee he could not come to the knowledge of the impugned order and only when the counsel of the assessee through e-filing portal of the department come across the fact that the CIT(A) has already passed the impugned order on 28.04.2023. Thus, Ld. AR has submitted that the delay in fling the appeal is neither intentional nor deliberately but due to circumstances which were beyond given control of the assessee. In support of his contention he has relied upon the following decisions: (i) Vijay vishan Meghani vs. DCIT (Bombay High Court ) 398 ITR 250 (ii) Improvement Trust vs. Ujagar Sing (SC) Civil Appeal Nos.2395 of 2008 dated 26.06.2010 (iii) Collector Land acquisition Anantnag & Anr. Vs. Mst. Katiji & Ors. 62 CTR (SC) 23 3. He has thus pleaded that the delay in filing the present appeal may be condoned and appeal of the assessee be decided on merits. 4. On the other hand, ld. DR has not seriously objected to the condonation of delay. ITANo.431/Ind/2023 Vipul Jain Page 3 of 7 5. We have considered rival submissions and carefully perused the contents of application for condonation of delay as well as affidavit filed by the assessee. The assessee has explained the cause of delay as grandfather of the assessee expired on 29.04.2023 which happen to be one day after the impugned order was passed by the CIT(A). Thus, the assesse has submitted that he was not able to check his mail on which the impugned order was sent and consequently was not aware about impugned order till the counsel of the assessee noticed it from the e-filing portal of the department. The assessee has filed the death certificate of his grandfather in support of the facts that he expired on 29.04.2023. Accordingly having regard to the facts and circumstances of the case and the explanation of the assessee we are satisfied that the assessee was having sufficient reason for not filing the appeal within the period of limitation hence, the delay of 129 days in filing the present appeal is condoned. 6. The assessee has raised following grounds of appeal: “1.That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deciding the appeal ex-parte without giving proper opportunity of being heard to the appellant. 2 That on the facts and in the circumstances of the case and in law, the ld. CIT(A) erred in confirming the addition of Rs. 73,40,000/- to the total income of the appellant on account of cash deposit in bank account of the appellant by treating it as unexplained money under section 69A r.w.s 115BBE of the Income-tax Act, 1961 without properly appreciating the facts of the case. 3 That on the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in confirming the addition of Rs. 73,40,000/- to ITANo.431/Ind/2023 Vipul Jain Page 4 of 7 the total income of the appellant on account of cash deposit in bank account of the appellant by treating it as unexplained money under section 69A r.w.s 115BBE of the Income-tax Act, 1961 even when the said cash deposits were made out of sales. proceeds of the business of the appellant which was already incorporated in the books of accounts of the appellant. 4 That on the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in confirming the addition of Rs. 73,40,000/- to the total income of the appellant on account of cash deposit in bank account of the appellant by treating it as unexplained money under section 69A r.w.s 115BBE of the Income-tax Act, 1961 even when, in any case, only the element of net profit could have been subject to tax. 5. That on the facts and in the circumstances of the case and in law, the Ld Assessing Officer erred in computing the amount of tax liability by invoking the amended provisions of section 115BBE of Income-Tax Act, 1961 even in respect of cash deposited in the bank accounts prior to 15-12-2016 i.e. prior to the date of obtaining assent from the President of India and henceforth, applicability of the amended provisions of section 115BBE of the Income-Tax Act, 1961 in respect of this addition was grossly unjustifiable and wholly unwarranted. 6. That on the facts and in the circumstances of the case and in law, the Ld Assessing Officer erred in charging interest under section 234A and section 234B of the Act of Rs. 2,92,210 - and Rs. 19,28,586/- respectively even when such amount of interest as charged was arbitrary, excessive and not chargeable as per the provisions of the Act.” 7. At the time of hearing Ld. AR of the assesse has submitted that the CIT(A) has dismissed the appeal of the assessee for non- prosecution due to the reason that the assessee did not respond to the notice issued by the CIT(A). He has pointed out that the assessee has given email ID in form 36 under the head personal information whereas the notices were sent by the CIT(A) to the ITANo.431/Ind/2023 Vipul Jain Page 5 of 7 different e-mail ID which is registered with the department and automatically picked up in para no.17 of form 35. He has pointed out that the details in para 17 of the form 35 are automatically taken by the system from PAN, data base available with the department. The assessee has no option to modify or change the same. Only in the first part of from 35 giving personal information the assessee can furnish address and e-mail ID which the assessee did. But the notices are being sent by the CIT(A) to the registered e- mail ID as per the PAN data. Thus, Ld. AR has submitted that these notices were issued by the CIT(A) to old e-mail ID not in use and due to non-communication of the notice the assessee could not respond the same. Hence, he has pleaded that the impugned order may be set aside and matter may be remanded to the record of the AO who has also passed best judgment assessment. 8. On the other hand, ld. DR has submitted that the assessee has not responded to the notices issued by the CIT(A) as well as by the AO. The AO has stated in the assessment order that the assessee did not respond to the notices as neither attended nor filed any submissions except first reply through department portal. Therefore, the AO was having no option but to assess the income of the assessee u/s 144 as best judgment assessment. Ld. DR has fairly submitted that since the assessment order was also passed u/s 144 therefore, the matter may be remanded to the record of the jurisdictional AO for fresh adjudication. ITANo.431/Ind/2023 Vipul Jain Page 6 of 7 9. Having considered rival submissions as well as relevant material on record we note that the CIT(A) has dismissed the appeal of the assessee for want of any reply or submission on behalf of the assessee in support of the grounds of appeal. We further note that the AO has also passed best judgment assessment when the assessee did not furnish the requisite information or reply to the various notices issued by the AO. Ld. AR has explained the reasons for non-compliance of the notices issued by the CIT(A) that the notices were sent to a different email ID then the e-mail ID given in form 35. Accordingly in the facts and circumstances of the case as well as in the interest of justice we set aside the impugned order and matter is remanded to the record of the jurisdictional AO for fresh adjudication after giving proper opportunity of hearing to the assessee. 10. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 29 .04.2024. Sd/- Sd/- (B.M. BIYANI) (VIJAY PAL RAO) Accountant Member Judicial Member Indore,_ 29.04.2024 Patel/Sr. PS ITANo.431/Ind/2023 Vipul Jain Page 7 of 7 Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Sr. Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore