Kishorebhai Ramanlal Panchal, Surat V. Income Tax Officer, Ward-1, Bardoli

ITA 721/SRT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 4038 (ITAT-SURAT)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-01-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 19-10-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Peak credit; Period of limitation; Additional evidence; Condonation of delay
• Section: 271(1)(c); 144; 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No. 721/Srt/2023 (Assessment Year 2011-12) (Physical hearing) Kishorebhai Ramanlal Panchal, Suthar Faliya, At & Post- Tadkeshwar, Tal.- Mandvi, Dist.- Surat. PAN No. ARGPP 6426 L Vs. I.T.O., Ward-1, Bardoli. Appellant/ Assessee Respondent/ Revenue Assessee represented by Shri Ashish Bhoola, C.A. Department represented by Shri Vinod Kumar, Sr.DR Appeal instituted on 20/10/2023 Date of hearing 24/01/2024 Date of pronouncement 31/01/2024 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) [in short, the ld. CIT(A)] dated 22/06/2023 for the Assessment Year (AY) 2011-12. The assessee has raised following grounds of appeal: “1. Addition of Rs. 26,63,289/- on account of entire credit entries in bank: a. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in not accepting the submission of the appellant that he is an agriculturist and credit entries (including cash deposits) in the bank account are out of agricultural income. The ld. CIT(A) has also conveniently ignored the debit entries (including cash withdrawals) in the same bank account. b. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in not appreciating the fact that the cash deposit of Rs. ITA No. 721/Srt/2023 Kishorebhai Ramanlal Panchal Vs ITO 2 25,10,000/- and cheque deposit of Rs. 1,50,000 represent the agricultural income of the assessee whereas Rs. 3,289/- is bank savings account interest but the entire credit entries of Rs. 26,63,289/- having been treated as undisclosed income u/s 68. c. On the facts and in the circumstances of the case, the ld. CIT(A) has erred in not appreciating the fact that similar credit entries in the case of assessee for AY 2012-13 and assessee’s wife for AY 2011- 12 have been accepted by the AO during scrutiny assessment proceedings after being satisfied about the genuineness of agricultural income and issuance of notice u/s 133(6) to the parties to whom agricultural produce were sold. 2. Miscellaneous: a. The ld. CIT(A) has erred in not deleting the penalty u/s 271(1)(c) for concealment of income by furnishing inaccurate particulars of income as the additions on the basis of which penalty was invoked was not warranted for in view of submission made by the appellant. b. The appellant craves to add, alter, delete or amend any other ground of appeal during the course of appeal proceedings.” 2. Rival submissions of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee submits that there is a delay of about 60 days in filing appeal before the Tribunal. The assessee has already filed application for condonation of delay. There is no intentional or deliberate delay in filing appeal before the Tribunal. The impugned order dated 22/06/2023 was uploaded on portal on 22/06/2023 itself. The assessee was out of India and was trying to reach India for taking necessary step for filing appeal. The assessee returned to India on 16/09/2023 and soon after contacted his Chartered Accountant, he filed appeal. Appeal could be filed only on 20/10/2023 i.e. after 60 days of period of limitation for filing appeal. The ld. AR of the assessee ITA No. 721/Srt/2023 Kishorebhai Ramanlal Panchal Vs ITO 3 submits that the assessee has filed copy of passport showing the arrival in India alongwith copy of boarding pass of air ticket. The ld. AR of the assessee submits that delay is not intentional or inordinate and may be allowed. On merit of the case, the ld. AR of the assessee submits that the Assessing Officer completed assessment under Section 144 of the Income Tax Act, 1961 (in short, the Act) by taking a view that despite service of various notices, no compliance was made by the assessee. The Assessing Officer made addition of cash deposit in bank aggregating of Rs. 26,63,289/-. The Assessing Officer made addition on the basis of ITB data available with him. Before the ld. CIT(A), the assessee filed application for admission of additional evidence. The ld. CIT(A) has not accepted the additional evidence and confirmed the action of Assessing Officer. The assessee also made alternative plea that the assessee is agriculturist and similar deposit on account of agricultural income was accepted in A.Y. 2012- 13 to the extent of Rs. 25,42,415/-. Similarly, in case of wife of assessee, the Assessing Officer accepted the agricultural income of Rs. 9,89,300/- for A.Y. 2011-12. The assessee also explained the cash withdrawal and deposit from time to time. The ld. AR of the assessee submits that either the matter may be remanded back to the ld. CIT(A) or to the file of Assessing Officer with the direction to accept/admit the additional evidence. ITA No. 721/Srt/2023 Kishorebhai Ramanlal Panchal Vs ITO 4 3. In alternative submission, the ld. AR of the assessee submits that peak credit in the bank account of assessee was only Rs. 8.00 lacs and considering the fact that similar deposit on account of agricultural income was accepted in case of assessee in A.Y. 2012-13 and in the case of his wife for A.Y. 2011-12, some reasonable disallowance from peak balance may be added. The assessee has already placed on record of ownership of land holding. 4. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue on the issue of condonation of delay of 60 days submits that the assessee has not explained the delay in a proper manner, the assessee is claiming to be out of India but not taking the recourse of law for filing appeal. On merit, the ld. Sr. DR for the revenue submits that the assessee was given sufficient reasonable opportunity by the Assessing Officer. The ld. CIT(A) considered all the facts and adjudicated the appeal. The assessee deserve no leniency at this stage. 5. We have considered the rival submissions of both the parties and perused the orders of lower authorities and our record carefully. First we consider the plea of condonation of delay of assessee, we find that the assessee has filed application for condonation of delay. Alongwith application, the assessee has filed copy of his passport showing his arrival in India on 16/09/2023 as shown on page No. 31, ITA No. 721/Srt/2023 Kishorebhai Ramanlal Panchal Vs ITO 5 which is a part of photo copy of passport of assessee. We further find that the assessee filed present appeal on 20/10/2023. Considering the facts and circumstances of the case, we are of the view that there is no deliberate or intentional delay in filing appeal before the Tribunal, thus the delay of 60 days in filing appeal is condoned. Now adverting to the merit of the case. 6. We find that the Assessing Officer made addition on the basis of information on ITS Data that there was cash deposit and credit entry aggregating of Rs. 26,63,289/- in the bank account of assessee. The Assessing Officer made addition by taking a view that despite serving various notices, the assessee has not made compliance. We find that during the relevant period, the assessee was not in India. However, during the first appellate stage, the assessee has filed additional evidence to substantiate the cash deposit. The assessee claimed that he is engaged in the agricultural activities and similar agricultural income has been accepted by the Revenue in subsequent year in order dated 04/12/2019 passed under Section 143(3) r.w.s. 147 of the Act. However, the additional evidence of assessee was not accepted, therefore, considering the facts and circumstances of the case that the lower authorities have made addition for want of proper explanation and evidence. Further considering the fact that for subsequent year, the agricultural income of almost similar amount ITA No. 721/Srt/2023 Kishorebhai Ramanlal Panchal Vs ITO 6 has been accepted by the Assessing Officer in the assessment order passed under Section 143(3) r.w.s. 147 of the Act, therefore, the grounds of appeal raised by the assessee are restored back to the file od Assessing Officer with direction to accept the additional evidence, verify the fact that if similar deposit is accepted on account of agricultural income, the assessee may be allowed appropriate relief. With this observation, the grounds of appeal raised by the assessee are allowed for statistical purposes. 7. In the result, this appeal of assessee is allowed for statistical purposes. Order announced in open court on 31 st January, 2024. Sd/- Sd/- (Dr. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 31/01/2024 *Ranjan Copy to: 1. Assessee 2. Revenue 3. PCIT 4. DR By order 5. Guard File Sr. Private Secretary, ITAT, Surat