Sh. Kamaljeet, Karnal V. ITO, Karnal

ITA 4495/DEL/2014

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4105 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 14-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Business income; Opportunity of being heard; Condonation of delay
• Section: 6; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI D BENCH, NEW DELHI BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER, AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 4495 /DEL/201 4 [ASSESSMENT YEAR: 20 09 - 10 ] SHRI KAMAL JEET VS. THE I.T .O H.NO. 119, SECTOR - 6 WARD - 2 URBAN ESTATE, KARNAL KARNAL PAN : A ICPJ 7728 C [APPELLANT] [RESPONDENT] DATE OF HEARING : 2 2 . 01 .2017 DATE OF PRONOUNCEMENT : 23 . 01 .201 8 ASSESSEE BY : NONE REVENUE BY : SHRI AMIT JAIN , SR. DR ORDER PER B.P. JAIN, ACCOUNTANT MEMBER, THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 12 . 12 .201 3 OF COMMISSIONER OF INCOME TAX [ APPEALS] , KARNAL AND RELATES TO ASSESSMENT YEAR 200 9 - 10 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. BECAUSE THE ACTION IS UNDER CHALLENGE ON FACTS AND LAW FOR HAVING DISMISSED THE APPEAL WITHOUT ADJUDICATING THEREOF ON THE 2 GROUND OF APPEAL AND MERITS RAISED THEREIN AND FOR NOT CONDONING THE DELAYED FILING OF 151 DAYS WHICH ACTION IS AGAINST THE LETTER AND SPIRIT OF LAW. 2. BECAUSE THERE IS AN ERRONEOUS INTERPRETATION TO THE WORD 'SUFFICIENT CAUSE' WHILE THE SUFFICIENT CAUSE ON THE TR UE AND CORRECT INTERPRETATION OF SECTION 249(3) R.W. 250(6) OF INCOME TAX ACT, 1961. 3. BECAUSE THE GROUNDS OF APPEAL HAVING EMBRACED BEFORE THE CIT, EXTRACTED BELOW REMAINING NON - ADJUDICATED. 1. 'BECAUSE THE ACTION IS CHALLENGED ON FACTS AND LAW FOR CO MPLETING THE ASSESSMENT U/ S 144 ON ACCOUNT OF CASH DEPOSITS IN HANK HAVING BEEN TREATED AS AN INCOME AND DISALLOWANCE OF EXPENSES IS WITHOUT EXAMINING AND APPRECIATING THE PRINCIPLES OF LAW FOR PASSING A BEST JUDGMENT ASSESSMENT ORDER WHICH IS ONLY ALTER EXAMINING THE MATERIAL ON RECORD. 2 A} BECAUSE THE ACTION IS CHALLENGED ON FACTS AND LAW BY MAKING AN ADDITION OF RS. 1,03,48,052/ - ON ACCOUNT OF UNEXPLAINED INVESTMENT U/ S 69A WHEREAS PER ASSESSEE THE SAME IS BUSINESS RECEIPTS AND TO SUBSTANTIATE THE SAID DEPOSIT THE EVIDENCE AND MATERIAL COULD NOT BE SUBMITTED DUE TO MEDICAL PROBLEM OF FATHER B) BECAUSE THE QUANTUM OF ADDITION IS UNDER CHALLENGE 3. BECAUSE THE ACTION IS CHALLENGED ON FACTS AND LAW BY DIS A LL O WING ADHOC 50% OF EXPENSES AMOUNTING TO RS. 76, 170 ON ACCOUNT OF 3 ABSENCE OF ANY DETAILS OF EXPENSES WHICH IS PERVERSE ON THE GROUND OF OVERLOOKING IGNORING THE FACTS AND THE MATERIAL ON RECORD. 3. BRIEF FACTS OF THE CASE ARE THAT THE ORDER IN THE PRESENT CASE HAS BEEN PASSED BY THE ASSESSING OFFICER U/S 144 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] DATED 14.12.2011. BEFORE THE LD. CIT(A), THE ASSESSEE FILED APPEAL DELAYED BY 151 DAYS. THE ASSESSEE SUBMITTED A LETTER FOR CONDONATION OF THE SAID DELAY AND THE SAID LETTER HAS BEEN REPRODUCED AT PAGES 2 AND 3 OF THE LD. CIT(A)S ORDER. THE LD. CIT(A) BEING NOT SATISFIED WITH THE SUBMISSIONS OF THE ASSESSEE, CAME TO T HE CONCLUSION THAT THE ILLNESS OF THE FATHER CANNOT BE CONSIDERED AS SUFFICIENT REASON FOR NOT FILING APPEAL AND, THEREFORE, HE HELD THAT THE APPEAL BEFORE HIM IS NOT MAINTAINABLE. ACCORDINGLY, HE DISMISSED THE APPEAL. 4. NONE ATTENDED ON BEHALF OF THE ASSESSEE. THEREFORE, WE HEARD THE LD. DR AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND IT RELEVANT TO REPRODUCE THE SUBMISSIONS OF THE ASSESSEE FOR CONDONATION OF DELAY BEFORE THE LD. CIT(A) WHICH, IN FACT, WAS DELAYED BY 151 DAYS AS UNDER: 4 1 . THE ORDER U/S 144 DATED 14.12.2011 WAS RECEIVED BY THE ASSESSEE ON 28.12.2011. 2. THE LAST DATE OF LIMITATION FOR FILING THE APPEAL WAS ON DT. 27.01.2012. 3. THERE IS A DELAY OF 149 DAYS ATTRIBUTABLE TO REASON OF SLIP BONE DISLOCATION AND SEVERE FRACTURE IN THE VERTEBRAE AT THE TALE BONE & RESULTING IN IMMOBILITY OF THE FATHER OF THE ASSESSEE WHICH COMMENCED FROM THE MONTH OF JULY 2010 AND IS CONTINUING TILL DA TE. THE SAID PROBLEM OF FATHER BECAME SEVERE FROM OCTOBER 2011 AND WHICH RESULTED IN DELAYED FILLING SINCE THE DOCUMENTS AND IMPORTANT PAPERS FOR THE CASE PROCEEDINGS COULD NOT BE ATTENDED AS THE PRIORITY WAS GIVEN TO THE LIFE AND HEALTH OF THE FATHER AGED 68 YEARS, MEDICAL HISTORY OF FATHER & DOCTOR CERTIFICATES IS AT PG 1 - 13. 4 ( A) THE FILING WAS DONE ON 25.06.2012 WITH A PRAYER THAT THE DELAY BE CONDONED FOR WHICH SEPARATELY AN AFFIDAVIT IS ENCLOSED AT PG. 14 - 29 ALONG WITH APPEAL SET BEING IMMEDIATELY ON THE FILING OF APPEAL EXPRESSING THE STAND OF THE ASSESSEE AT THE TIME OF INSTITUTING THE APPEAL. B) THERE HAS BEEN AN UNINTENTIONAL AND AN INADVERTENT MISTAKE DUE TO REASONS BEYOND CONTROL. 5. THE HUMBLE PRAYER IS THAT THE AFORESAID DELAY IS UNINTENTIONAL & INADVERTENT AND THERE IS SUFFICIENT CAUSE WHEREIN THE HUMBLE PLEADINGS IS FOR CONDONING THE DELAY ATTRIBUTABLE TO THE AFORESAID REASONS AS THE ASSESSEE WOULD GO 5 TO SUFFER VERY BADLY SINCE EVEN THERE IS A CASE PRIMA FACIE WHEREIN ASSESSEE IS LIKELY TO SUCCEED AS THE DEPOSIT OF RS. 1,03,48,052/ - IN BANK ACCOUNT WITH CENTRAL BANK OF INDIA IS IN JOINT NAME OF ASSESSEE AND SH. RAM CHANDER UNDER THE CAPACITY OF AOP WHEREAS THE LD. AO ASSUMES T HE SAID FACT IN AN INDIVIDUAL CAPACITY THUS, A QUESTION FOR DETERMINATION IN ACCORDANCE WITH THE FACTS AND EVIDENCES EXAMINED BY THE RESPONDENT AO AND NOT BROUGHT ON RECORD, HOWEVER ARE MATERIAL FACTS CONTAINING MATERIAL PARTICULARS AVAILABLE IN THE A SSESSMENT FOLDER ' 5. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR AND PERUSING THE IMPUGNED ORDER, WE FIND THAT THE ASSESSEE HAS SUBMITTED SUFFICIENT CAUSE BEING SLIP BONE DISLOCATION AND SEVER FRACTURE IN THE VERTEBRAE AT THE TAIL BONE AND RESULTING IN IMMOBILITY OF THE FATHER OF THE ASSESSEE AND, THEREFORE, WE FIND SUFFICIENT CAUSE IN NOT FILING APPEAL IN TIME AND ACCORDINGLY, THE LD. CIT(A) SHOULD HAVE CO NDONED THE DELAY AND DECIDE THE ISSUE ON MERITS. W E FIND THAT THE HON'BLE APEX COURT IN THE CASE OF VEDABAI ALIAS VAIJAYANATABAI VS SHANTARAM BABURAO PATIL AND ORS REPORTED AT 253 ITR 798 HELD AS UNDER: A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF A FEW DAYS. WHEREAS IN THE FORMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE A RELEVANT FACTOR SO THE CASE CALLS FOR A MORE 6 CAUTIOUS APPROACH BUT IN THE LATTER CASE NO SUCH CONSIDERAT ION MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. 6 . WE, THEREFORE, CONSIDERING THE GENUINE AND VALID REASONS STATED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT AND BY TAKING A LIBERAL APPROACH, CONDONE THE DELAY. THE LD. CIT(A) IS DIRECTED TO CONDONE THE SAID DELAY AND DECIDE THE ISSUE ON MERITS AFTER AFFORDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7 . IN THE R ESULT, THE APPEAL OF THE ASSESSEE IN ITA NO. 4495 /DEL/201 4 IS ALLOWED FOR STATISTICAL PURPOSES . THE ORDER IS PR ONOUNCED IN THE OPEN COURT ON 2 3 . 01.2018 . SD/ - SD/ - [ SUDHANSHU SRIVASTAVA ] [B.P. JAIN] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 2 3 R D JANUARY, 2018 VL/ 7 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI