Furakan,Aligarh, Aligarh V. ITO, Ward-4(1)(4), Aligarh, Aligarh

ITA 95/AGR/2022

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2332 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-12-0000
• Assessment Year: 2017-2018
• Appeal Filed On: 29-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARSH SIDDHARTH GAUTAM
• Keywords: Period of limitation; Time period of passing order; Set aside
• Section: 144; 44AD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE: SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER AND SHRI P.C. YADAV, JUDICIAL MEMBER ITA No. 95/Agr/2022 Assessment Year: 2017-18 Furakan, S/o Shri Bavaroodadeen, Prop. Hazi Ent Udyog, Rampur, Shahpur Chandaus, Gabhana, Aligarh. PAN: ABIPF6996R v. Income-tax Officer, Ward 4(1)(4), Aligarh. (Appellant) (Respondent) Assessee by :None Revenue by : Sh. Harsh Siddharth Gautam, Sr. DR Date of hearing : 13.05.2024 Date of Pronouncement: 16.05.2024 ORDER PER RAMIT KOCHAR, AM: This appeal has been filed before Tribunal in ITA No. 95/Agr/2022 for assessment year 2017-18, which has arisen from the appellate order dated 13.09.2021 passed by Ld. CIT(Appeals) (Din & Order No. ITBA/NFAC/S/250/2021-22/1035496492(1), which in turn, has arisen from the assessment order dated 12.12.2019 passed by the ITA No. 95/Agr/2022 2 Assessing Officer u/s. 144 of the Income-tax Act, 1961 for the assessment year 2017-18. 2. This appeal has been filed late before the Tribunal and the assessee has filed application for condonation of delay, in which the assessee has claimed that the assessee is in the business of making of bricks and sale thereof in the rural area and the customers of the assessee are mostly agriculturists, who pay the money in cash and the assessee’s income, being below the taxable limit, the assessee has not filed return of income and hence, the assessee has never engaged any Counsel. On receipt of notice, the assessee engaged one advocate, but the Counsel did not appear before the authorities, which led into ex parte orders before the Assessing Officer. On receipt of order from Ld. CIT(Appeals), the assessee had given the same to the advocate, but he never filed further appeal and returned the appellate order back to the assessee. Thus, the assessee engaged another Advocate to file appeal before the Tribunal. The delay in filing the appeal is beyond the control of the assessee and considering the reasonable cause, the delay should be condoned. Further, the assessee has relied upon the decision of Hon’ble Supreme Court dated 10.01.2022 in Re: ITA No. 95/Agr/2022 3 Cognizance for Extension of Limitation Suo Motu Petition(C) No. 3 of 2020, in which Hon’ble Supreme Court has granted extension of Limitation period from 15.03.2020 to 28.02.2022 by excluding the above period for computation of Limitation and further period of 90 days for filing of appeal, keeping in view Covid-19 Pandemic. Ld. CIT(Appeals) has disposed of appeal of the assessee on 13.09.2021 and the assessee has filed appeal with Tribunal on 30.05.2022 and as per order of the Hon’ble Supreme Court dated 10.01.2022, para 5(iii), Hon’ble Supreme Court has granted general extension by excluding limitation period from 15.03.2020 to 28.02.2022 and a further period for 90 days from 01.03.2022. The appeal is filed on 30.05.2022, which is delayed by one day. Keeping in view decision of Hon’ble Supreme Court and the assessee has explained the reason for delay and Ld. DR has no objection to condone the delay, we condone the delay of one day in filing the appeal. 3. Now, coming to the merits of the issues, the Assessing Officer has made addition of Rs.12,88,000/-, out of which addition of Rs.10,88,000/- was made on account of cash deposits appearing in bank account No. 6945002100000416 with PNB Bank and account No. ITA No. 95/Agr/2022 4 121520110000002 with Gramin Bank of Aryavrat. This is an ex parte order passed by the Assessing Officer, as the assessee did not appear on various opportunities granted by Assessing Officer. It is the say of the assessee that the assessee is a brick kiln manufacturer in rural area and the income of the assessee, being below taxable limit, the assessee has not filed return of income. Further, addition of Rs.2,00,000/- has been made on account of income from brick kiln run by the assessee in the name of M/s. Hazi Ent Udyog. The assessee filed first appeal and raised the contention that the assessee’s brick kiln is situated in rural area and customers are mostly agriculturists, who pay money in cash against sale consideration, which is kept in the kiln camp to pay the labourers. The assessee has also claimed that the assessee has income from agriculture and during the demonetization period, the assessee has deposited Rs.10,88,000/- in the bank account. The assessee filed agricultural land ownership proofs and bank statement, but Ld. CIT(Appeals) dismissed the appeal of the assessee on the ground that the assessee had not filed any application for admission of additional evidence with respect to agricultural land ownership and bank statements submitted by the assessee and it is ITA No. 95/Agr/2022 5 also averred by Ld. CIT(Appeals) that the assessee has not submitted any evidence in support of his claim of receiving money from relatives or from sale of bricks. The assessee has also claimed that if the assessee is engaged in the business of brick kiln, then the assessee is entitled for invoking provisions of section 44AD, but this contention of the assessee has not been considered by Ld. CIT(Appeals). Now, the assessee, being aggrieved, has filed appeal before the Tribunal. 4. Learned DR relied upon the order of Ld. CIT(Appeals). None appeared on behalf of the assessee when the appeal was called for hearing before the Bench. Ld. DR submitted that the matter can be decided by the Bench after perusing the records and the order of Ld. CIT(Appeals). 5. After hearing Ld. DR and considering entire material on record, we are of the considered view that Ld. CIT(Appeals) has not adjudicated the contention of the assessee that the assessee is entitled for invocation of section 44AD with respect to business of running a brick kiln. Ld. CIT(Appeals) has also rejected the additional evidences filed by the assessee on technical ground although he has accepted that the additional evidences have been filed by the assessee. ITA No. 95/Agr/2022 6 Considering all these facts and in the interest of justice & fairness to both the parties, we observe that the order passed by Ld. CIT(Appeals) does not satisfy the mandates of section 250(6) of the Income Tax Act, wherein Ld. CIT(Appeals) is required to adjudicate all the issues raised by the assessee being points for determination and to pass a reasoned order, which in this case has not been done. In these circumstances, it is deemed fit and proper to set aside the order of Ld. CIT(Appeals) and to restore the issues to the file of Ld CIT(Appeals) for fresh adjudication of all the issues raised by the assessee. Needless to say, proper opportunity of hearing shall be granted by the Ld. CIT(Appeals). The order of Ld. CIT(Appeals) is, accordingly, set aside and the appeal is restored back to the file of Ld. CIT(Appeals) for fresh determination of all the issues raised by the assessee on merits in accordance with law.. 6. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 16/05/2024. Sd/- Sd/- (P.C. YADAV) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 16/05/2024