Sri Baljit Singh, New Delhi V. ITO, New Delhi

ITA 6118/DEL/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5204 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 29-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 13-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANUPAM TRIPATHI
• Keywords: Condonation of delay
• Section: 143(3); 154

Judgement Text

ITA NO. 6118/DEL/2013 ASSESSMENT Y EAR: 2007 - 08 PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH A BENCH NEW DELHI) BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI L.P. SAHU, ACCOUNTANT MEMBER I N ITA NO. 6118 /DEL/201 3 ASSESSMENT YEAR: 20 0 7 - 08 BALJIT SINGH A - 176, FATEH NAGAR, NEW DELHI VS. ITO WARD - 27(4) NEW DELHI (APPLICANT) (RESPONDENT) (PAN: A A D C K6103E ) ASSESSEE BY: SHRI ANUPAM TRIPATHI, ADVOCATE REVENUE BY: SHRI ARUN KUMAR YADAV , SR. DR DATE OF HEARING 0 8 / 0 8 /201 7 DATE OF PRONOUNCEMENT 1 4 / 0 8 /201 7 ORDER PER AMIT SHUKLA, JUDICIAL MEMBER : THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST IMPUGNED ORDER DATED 28.12.2011, PASSED BY THE LD. CIT (APPEALS) - XVI, NEW DELHI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 143(3) FOR THE A.Y. 2007 - 08. VARIOUS GROUNDS OF APPEAL OF THE ASSESSEE HA M AINLY CHALLENGED THE ADDITION OF RS. 11,53,500/ - MADE BY THE ASSESSING OFFICER. THE ADDITION AS UNEXPLAINED CASH DEPOSITS IN THE BANK ACCOUNT. 2. AT THE OUTSET, IT IS NOTICED THAT THE APPEAL OF THE ASSESSEE IS BARRED BY LIMITATION BY 684 DAYS. IN THE PETI TION FOR CONDONATION OF PAGE 2 OF 5 DELAY, THE ASSESSEE SUBMITTED THAT THE COUNSEL WAS HANDLING THE MATTER AND WRONGLY ADVISED THE ASSESSEE TO FILE RECTIFICATION U/S 154 BEFORE THE LEARNED CIT(APPEALS) AGAINST THE ORDER PASSED BY HIM. THE SAID PETITION WAS NOT DISPOSE D OFF BY THE LEARNED CIT(APPEALS) EVEN AFTER ELAPSED OF SUBSTANTIAL TIME. LATER ON, IN THE MATTER PURSUED BEFORE THE LEARNED CIT(APPEALS), THE ASSESSEE WAS ADVISED THAT THE PROPER COURSE OF ACTION WOULD BE TO FILE SECOND APPEAL BEFORE THE TRIBUNAL. IN PURS UANCE THEREOF, THE ASSESSEE FILED LETTER DATED 8.10.2013 BEFORE THE LEARNED CIT(APPEALS) STATING THAT HE IS WITHDRAWING THE SAID APPLICATION U/S 154 SO AS TO FILE THE APPEAL BEFORE THE TRIBUNAL. THEREAFTER, THE ASSESSEE APPROACHED A DIFFERENT LAWYER FOR FI LING THE APPEAL BEFORE THE TRIBUNAL. THE DELAY OF 684 DAYS SOLELY DUE TO IMPROPER ADVICE GIVEN BY THE COUNSEL AS THERE IS NO INTENTION OF NOTE CONTESTING THE ADDITION MADE IN THE HANDS OF THE ASSESSEE WHO IS A SENIOR CITIZEN, THE LD. COUNSEL BEFORE US. SUB MITTED THAT THE ASSESSEE WAS PURSUING ANOTHER LEGAL PROCEEDINGS THOUGH WRONGLY ADVISED, HE WAS IN A BONA FIDE BELIEF THAT THE REMEDY AGAINST THE LEARNED CIT(APPEALS) S ORDER WAS FILING THE REVIEW PETITION U/S 154 RATHER THAN REFERRING THE SECOND APPEAL BEFORE THE TRIBUNAL. THEREFORE, THE DELAY IN FILING THE APPEAL SHOULD BE CONDONED. ON THE OTHER HAND THE LD. DR STRONGLY OBJECTED TO THE CONDONATION OF DELAY AND SUBMITTED THAT PURSUING A WRONG STATUTORY REMEDY CANNOT BE A REASONABLE GROUND FOR CONDONATION OF DELAY. THEREFORE, THE APPEAL OF THE ASSESSEE SHOULD NOT BE ADMITTED. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS ON THE ISSUE OF CONDONATION OF DELAY AND ALSO PERUSED MATERIAL PLACED ON RECORD. IT IS SEEN THAT AGAINST THE IMPUGNED APPELLATE ORDER DATED 28 .12.2011, THE ASSESSEE HAD FILED AN APPLICATION TITLED AS REVIEW OF THE CASE OF PAGE 3 OF 5 SHRI BALJEET SINGH U/S 154. THE SAID APPLICATION WAS FILED ON 4.5.2012 , IN THE SAID PETITION, IT HAS BEEN STATED THAT THE ASSESSEE COULD NOT PRODUCE RELEVANT FACTS BECAUSE TH E PREVIOUS CHARTERED ACCOUNTANT SUFFERING FROM BLOOD CANCER AND WAS UNABLE TO PREPARE THE CASE AND SUBMIT THE ADEQUATE FACTS. LATER ON, HE EXPIRED. APART FROM THAT HE ALSO SUBMITTED DETAILS FOR SOURCES OF HIS DEPOSITS IN THE BANK ACCOUNT STATING THAT SAME HAS BEEN RECEIVED FROM HIS WIFE AND SISTERS AND OTHER RELATIVES. THE SAID MONEY WAS UTILIZED FOR CONSTRUCTION OF HOUSE IN NEW DELHI. SINCE HE WAS A SENIOR CITIZEN, THEREFORE, HE WAS UNABLE TO REPRESENT THE CASE PERSONALLY AND WAS DEPENDANT ON COUNSEL. HOWE VER, THE SAID PETITION WAS DISPOSED OFF BY THE LEARNED CIT(APPEALS). IT WAS ONLY WHEN INFORMED TO THE ASSESSEE THAT PROPER REMEDY WAS TO FILE SECOND APPEAL BEFORE THE TRIBUNAL, THEN HE WITHDREW THE SAID REVIEW APPLICATION FILED BEFORE THE LEARNED CIT(APPEA LS) AND IMMEDIATELY FILED THE APPEAL BEFORE THE TRIBUNAL. THE ENTIRE CONDUCT OF THE ASSESSEE APPEARS TO BE BONA FIDE AS IT APPEARS THAT FIRSTLY, HIS EARLIER COUNSEL COULD NOT REPRESENT HIS CASE OF THE ASSESSEE, HE WAS SUFFERING FROM BLOOD CANCER WHO EVENTU ALLY DIED AND SECONDLY, DID NOT GET PROPER LEGAL ADVICE FOR PURSUING THE REMEDY BEFORE THE CORRECT FORUM. THEY DOES NOT SEEM TO BE ANY LATCHES ON THE PART OF THE ASSESSEE FOR NOT PURSUING ITS APPEAL. UNDER THESE FACTS AND CIRCUMSTANCES AND INTEREST OF THE SUBSTANTIAL JUSTICE WE ARE CONDONING THE DELAY OF 684 DAYS AND ADMITTED THE APPEAL HAVE APPEARED ON MERITS. ON PERUSAL OF THE IMPUGNED ORDER, WE FIND MAIN ISSUE RELATES TO ADDITION ON ACCOUNT OF CASH DEPOSITS WITH THE STANDARD CHARTERED BANK FOR SUMS OF AG GREGATING TO RS. 11,53,500/ - . THE ASSESSEE WORKS AS LIC AGENT AND THE SAID CASH DEPOSITS HAVE BEEN STATED TO BE OUT OF THE FUNDS RECEIVED FROM HIS WIFE, SON AND SISTER WHO IS A BRITISH RESIDENT. IT HAS PAGE 4 OF 5 ALSO BEEN STATED BEFORE THE LEARNED CIT(APPEALS) THAT THE PROPER EVIDENCES COULD NOT BE FURNISHED BECAUSE THE COUNSEL OF THE ASSESSEE WAS ON BED REST AND THE ASSESSEE HIMSELF WAS A HEART PATIENT. THE LEARNED CIT(APPEALS) HAS CONFIRMED THE SAID ADDITION ON THE GROUND THAT THE ASSESSEE HAS GIVEN EXPLANATION WHI CH CANNOT BE ACCEPTED. WE FIND THAT THOUGH THE ASSESSEE MAY HAVE GIVEN ONE EXPLANATION BEFORE THE ASSESSING OFFICER, HOWEVER, THE SAME AND SUBSTANCE OF THE ASSESSEE S CONTENTION HAS BEEN THAT MOST OF THE DEPOSITS HAVE COME EITHER THROUGH VERY CLOSE FAMILY MEMBERS LIKE WIFE, SISTER AND SONS FOR WHICH DAY TODAY, SINCE THIS ISSUE, THE ENTIRE MATTER HAS NOT BE REPRESENTED PROPERLY, THEREFORE, IN THE INTEREST OF JUSTICE WE FEEL THAT THE ENTIRE ISSUE OF UNEXPLAINED CASH DEPOSITED IN THE BANK ACCOUNT SHOULD BE RES TORED BACK TO THE ASSESSING OFFICER AND THE ASSESSEE WOULD BE AT LIBERTY TO FILE IN SUCH EVIDENCE OR GIVEN EXPLANATION IN SUPPORT TO SUBSTANTIATE THE GENUINENESS OF THE CASH DEPOSITS. THE ASSESSING OFFICER SHALL GIVEN DUE OPPORTUNITY TO THE ASSESSEE TO REP RESENT HIS CASE AND PASS THE ORDER IN ACCORDANCE WITH THE LAW. THUS, THE GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER P RONOUNCED IN THE OPEN COURT ON 1 4 . 0 8 .201 7. S D / - S D / - ( L.P. SAHU ) (AMIT SHUKLA) ( ACCOUNTANT MEMBER ) (JUDICIAL MEMBER) DATED: 1 4 . 0 8 .2017 PAGE 5 OF 5 NARENDER COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT (APPEALS) 5) DR: ITAT ASSISTANT REGISTRAR DATE DRAFT DICTATED ON 0 8 .0 8 .2017 DRAFT PLACED BEFORE AUTHOR 0 9 . 0 8 .2017 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. APPROVED DRAFT COMES TO THE SR.PS/PS 1 4 . 8 .2017 KEPT FOR PRONOUNCEMENT ON 1 4 . 8 .2017 FILE SENT TO THE BENCH CLERK 1 4 . 8 .2017 DATE ON WHICH FILE GOES TO THE AR DATE ON WHICH FILE GOES TO THE HEAD CLERK. DATE OF DISPATCH OF ORDER.