SHRI DARA SINGH , JHUNJHUNU V. INCOME TAX OFFICER, WARD-1, JHUNJHUNU

ITA 976/JPR/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 4835 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 17-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Assessee Lawyers: K L MOOLCHANDAN I
• Keywords: Salary income; Period of limitation; Reasonable cause; Time period of passing order; Reassessment proceedings
• Section: 147; 69

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 976/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2014-15 SHRI DARA SINGH S/O SHRI MADAN LAL SAINI, R/O DHANI NIMRA WALI, BUDANA, JHUNJHUNU CUKE VS. ITO, WARD-1 JHUNJHUNU LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: BFFPS8974C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI K. L. MOOLCHANDANI, (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 15/10/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 24/10/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-3, JAIPUR DATED 11.06.2018 FOR A.Y. 2008-09 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS FACTUALLY AND LEGALLY ERRED IN NOT APPRE CIATING THE FACT THAT THE APPELLANT WAS PREVENTED BY REASONABLE CAUS E FROM MAKING COMPLIANCE OF THE VARIOUS HEARING NOTICES. T HE APPELLANT BEING AN ARMY MAN WAS DETAILED IN BORDER AREAS OF J AMMU & KASHMIR AT THE RELEVANT POINT OF TIME, SO HE COULD NOT COMMUNICATE WITH HIS AR AT JAIPUR. ITA NO. 976/JP/2018 SHRI DARA SINGH, JHUNJHUNU VS. ITO, JHUNJHUNU 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS FACTUALLY AND LEGALLY ERRED IN DISMISSIN G THE APPEAL SUMMARILY AT ADMISSION STAGE WITHOUT GOING INTO T HE MERITS OF THE FACTS ON THE PLEA THAT THE APPEAL FILED MANUAL LY WAS NON-EST IN ABSENCE OF THE E-FILED RETURN UNDER RULE 45(1) OF I. T. RULES, 1961. IN FACT, THE APPELLANT WAS UNDER BONA-FIDE BE LIEF THAT HE WAS NOT REQUIRED TO E-FILE THE APPEAL AS PER RULES. IN THE CIRCUMSTANCES, THE FINDINGS OF THE LD. CIT(A) DESER VE TO BE QUASHED. 3. WITHOUT PREJUDICE TO THE ABOVE FACTUAL AND LEGAL OBJECTIONS, ON THE FACTS AND IN THE CIRCUMSTANCES, THE LD. AO H AS FACTUALLY AND LEGALLY ERRED IN MAKING FOLLOWING ADDITIONS WIT HOUT APPRECIATING THE FACTS OF THE CASE IN RIGHT PERSPEC TIVE. (I) ON ACCOUNT OF UN-EXPLAINED CASH BALANCE RS. 92,200/- (II) UN-DISCLOSED INVESTMENT U/S 69 OF THE ACT. RS. 3,12,860/- THUS, THE SAME DESERVE TO BE DELETED SUMMARILY. 2. THE LD. AR SUBMITTED THAT THE APPELLANT IS AN AR MY MAN AND OTHER THAN SALARY INCOME, HE HAD NO OTHER SOURCE OF INCOM E. DURING THE YEAR, HE HAD PURCHASED TWO PIECES OF OPEN PLOTS OF LAND F OR RS. ONE LAC EACH I.E. RS. 2 LAC FOR BOTH THE PLOTS. HOWEVER, THERE W AS A TAX EVASION PETITION ALLEGING THEREIN THAT THE ACTUAL INVESTMEN T IN THESE PLOTS WERE RS.5,12,860/- AS AGAINST RS.2 LAC SHOWN BY THE APPE LLANT. ACCORDINGLY, THE REASSESSMENT PROCEEDINGS WERE INITIATED U/S 147 /148 OF THE ACT AND THE APPELLANT WAS REQUIRED TO EXPLAIN THE NATURE AN D SOURCE OF THE INVESTMENT. IN REPLY, IT WAS INFORMED THAT HE WAS AN ARMY MAN AND WAS SERVING AS HAWALDAR IN THE ARMY FOR LAST 25 YEARS. EXCEPT SALARY INCOME, HE HAD NO OTHER SOURCE OF INCOME. OUT OF HIS PAST S AVINGS FROM THE SALARY INCOME, HE COULD SAVE RS.2 LAC TO MAKE SUCH INVESTMENT. HE HAD DENIED TO HAVE MADE ANY ON-MONEY PAYMENT FOR THE PU RCHASE OF SUCH ITA NO. 976/JP/2018 SHRI DARA SINGH, JHUNJHUNU VS. ITO, JHUNJHUNU 3 PLOTS AS ALLEGED IN THE TAX EVASION PETITION. THE I D. AO DID NOT ACCEPT SUCH EXPLANATION AND PROCEEDED TO MAKE FOLLOWING AD DITIONS: (I) OUT OF PAST SAVINGS CLAIMED.- RS.92,200/- (II) ON ACCOUNT OF UN-DISCLOSED INVESTMENT IN THE PURCHASE OF THESE PLOTS - RS.3,12,860/- 3. THE LD AR FURTHER SUBMITTED THAT BEING AGGRIEVE D WITH THE ABOVE ADDITIONS, THE APPELLANT HAD FILED APPEAL WITH THE LD. CIT (A)-3, JAIPUR MANUALLY ON 6.3.2016 AS PER COPY OF APPEAL MEMO IN FORM NO.35 ALREADY SUBMITTED WITH FORM NO.36. AFTER FILING THE APPEAL, THE APPELLANT HAD WENT BACK TO HIS DUTY POINT IN KASHMI R (KUPWARA). MEAN- WHILE, HIS APPEAL WAS TAKEN UP FOR HEARING BY THE L D. CIT (A) ON 29.11.2017. AS THE APPELLANT WAS POSTED AT KUPWARA AT THE GIVEN POINT OF TIME, SO HIS AR. COULD NOT COMMUNICATE WITH THE APPELLANT AND COULD NOT DEFEND THE APPEAL PROCEEDINGS. AFTER FEW SHORT ADJOURNMENTS, ON 8.6.2018, THE APPELLANT WAS DIRECTED TO E-FILE THE APPEAL AS PER RECENT INSTRUCTIONS OF THE CBDT AS THESE INSTRUCTIONS WERE MADE EFFECTIVE W.E.F. 1.3.2016. AS THE APPELLANT WAS POSTED IN KAS HMIR AT THE GIVEN POINT OF TIME SO THE DIRECTIONS OF THE LD. CIT (A) COULD NOT BE COMMUNICATED TO THE APPELLANT AT HIS DUTY POINT. IN THE CIRCUMSTANCES, THE APPEAL COULD NOT BE E-FILED IN C OMPLIANCE TO THE DIRECTIONS OF LD. CIT (A). IN THE CIRCUMSTANCES, TH E LD. CIT (A) HAD PROCEEDED TO DISMISS THE APPEAL SUMMARILY TREATING THE MANUAL APPEAL FILED IN FORM NO.35 AS NON-EST. THUS THE APP EAL WAS DISMISSED WITHOUT GOING INTO THE MERITS OF THE FACT . 4. IT WAS SUBMITTED BY THE LD AR THAT THE ID. CIT (A) HAD ERRED IN DISMISSING THE APPEAL SUMMARILY WITHOUT GOING IN TO THE MERITS OF THE FACTS AND WITHOUT APPRECIATING THE FACT THAT THE APPEAL COULD NOT BE E-FILED FOR GENUINE AND BONA-FIDE REAS ONS. AS ITA NO. 976/JP/2018 SHRI DARA SINGH, JHUNJHUNU VS. ITO, JHUNJHUNU 4 MENTIONED ABOVE, THE INSTRUCTION OF THE CBDT WAS MA DE APPLICABLE W.E.F. 1.3.2016 AND THE APPEAL WAS FILED MANUALLY BY THE APPELLANT ON 6-3-2016. THE APPELLANT WAS NOT UP DATED WITH THE RECENT INSTRUCTIONS OF THE BOARD WHICH WERE ISS UED ONLY FEW DAYS BACK I.E. ABOUT 5 DAYS BACK. FURTHER, WHEN SUC H OMISSION WAS POINTED OUT TO AR ON 8.6.2018, THE APPELLANT WA S POSTED IN THE BORDER AREA OF 'KASHMIR' SO SUCH DIRECTIONS OF E-FILING THE APPEAL COULD NOT REACH HIM. 5. IT WAS FURTHER SUBMITTED BY THE LD AR THAT HAVI NG COME TO KNOW THE FATE OF HIS APPEAL FILED MANUALLY, THE APPELLAN T HAD IMMEDIATELY COME INTO ACTION AND HAS NOW E-FILED THE APPEAL AS PER COPY SUBMITTED HEREWITH FOR YOUR KIND PERUSAL. IN THE CI RCUMSTANCES, IT WOULD BE IN THE INTEREST OF 'EQUITY' AND 'NATURAL J USTICE' IF THE APPEAL IS DECIDED ON MERITS. ALTERNATIVELY, THE MATTER MAY KINDLY BE REMANDED BACK TO THE LD. CIT (A) TO DECIDE THE APPE AL ON MERITS. IN THIS REGARD, IT WOULD BE WORTH-WHILE TO MENTION THA T ON MERITS, IN THE CASES OF THE SELLERS OF THESE PLOTS, THE ADDITI ON MADE ON ACCOUNT OF THE ALLEGED ON-MONEY PAYMENTS OF RS.3,12 ,860/- FOR THESE PLOTS STOOD ALREADY DELETED BY THE LD. CIT (A ) AS PER COPY OF THE APPEAL ORDER SUBMITTED HEREWITH. IN THE CIRCUMS TANCES, THE ADDITION OF RS.3,12,860/- MADE ON ACCOUNT OF THE A LLEGED ON- MONEY PAYMENT IS A COVERED POINT, DESERVES TO BE DE LETED ON MERITS ITSELF. THE SECOND ADDITION OF RS. 92,200/- ON ACCOUNT OF THE PAST SAVINGS CLAIMED HAD ALSO BEEN MADE ON FLIMSY G ROUNDS WITHOUT ANY BASIS AND DESERVES TO BE DELETED SUMMARILY. EVE N OTHER-WISE, THE AMOUNT OF ADDITION IS INSIGNIFICANT AND WOULD H AVE NO TAX-EFFECT IF ADDED IN THE INCOME OF THE APPELLANT FOR ANY REA SON. ITA NO. 976/JP/2018 SHRI DARA SINGH, JHUNJHUNU VS. ITO, JHUNJHUNU 5 6. THE LD. AR FURTHER RELIED ON THE DECISION OF THE CO-ORDINATE BENCH IN CASE OF ASHRAF AZIZ KASMANI V. ITO (2018) 170 IT D 230 (MUM) (TRIB) FOR THE PROPOSITION THAT E-FILING OF APPEAL IS NOT APPLICABLE FOR ASSESSMENT ORDERS PASSED PRIOR TO 10.03.2013, THE D ATE OF NOTIFICATION ISSUED BY THE CBDT REQUIRING E-FILING OF APPEAL BEF ORE THE CIT(A). FURTHER, RELIANCE WAS PLACED ON THE DECISION OF THE CO-ORDINATE BENCH IN CASE OF ALL INDIA FEDERATION OF TAX PRACTIONERS VS ITO (ITA NO. 7134/MUM/2017 DATED 4.05.2018) FOR THE PROPOSITION THAT WHERE THE ASSESSEE HAD ALREADY FILED THE MANUAL APPEAL WITHIN THE LIMITATION PERIOD, THE CIT(A) SHOULD NOT SUMMARILY DISMISS THE APPEAL FOR TECHNICAL BREACH OF NOT FILING THE APPEAL ELECTRONI CALLY. 7. THE LD. DR REFERRED TO THE ORDER OF THE LD. CIT (A) AND SUBMITTED THAT SINCE THE ASSESSEE HAS FAILED TO FILE THE APPE AL ELECTRONICALLY EVEN AFTER GIVING A SPECIFIC OPPORTUNITY BY THE LD. CIT( A), THE MANUAL APPEAL FILED BY THE ASSESSEE HAS BEEN RIGHTLY TREATED BY T HE LD. CIT(A) AS NON- EST. AS THE SAME TIME, THE LD. DR FAIRLY SUBMITTED THAT WHERE THE BENCH SO DECIDE, THE MATTER MAY BE SET ASIDE TO THE FILE OF LD. CIT(A) TO DECIDE THE ISSUE ON MERITS. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE APPEAL HAS BEEN FILED MANUALLY BY THE ASSESSEE BEFORE THE LD CIT(A) WITHI N THE LIMITATION PERIOD AND THERE IS THUS NO DELAY IN FILING OF THE APPEAL AND THE SAME HAS ALSO NOT BEEN DISPUTED BY THE REVENUE. MERELY NON-FILING OF THE APPEAL ELECTRONICALLY TO OUR MIND IS A MERELY A TEC HNICAL BREACH WHICH THE LD CIT(A) HAS ALSO ACKNOWLEDGED WHERE HE HAS AS KED THE ASSESSEE TO FILE THE APPEAL ELECTRONICALLY. FOR REASONS SO SUBMITTED BY THE LD AR AS WE HAVE NOTE ABOVE, THE ASSESSEE BEING AN ARMY M AN POSTED IN ITA NO. 976/JP/2018 SHRI DARA SINGH, JHUNJHUNU VS. ITO, JHUNJHUNU 6 KASHMIR AND DUE TO LACK OF TIMELY COMMUNICATION, TH E APPEAL COULD NOT BE FILED ELECTRONICALLY EARLIER. WE FIND THAT THER E IS A REASONABLE CAUSE FOR THE DELAY IN FILING THE APPEAL ELECTRONICALLY W HICH HAS SINCE BEEN FILED. IN THE INTEREST OF JUSTICE, WE HEREBY SET-A SIDE THE MATTER TO THE FILE OF THE LD CIT(A) TO EXAMINE THE MATTER ON MERI TS AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 24/10/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 24/10/2018. * GANESH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI DARA SINGH, JHUNJHUNU 2. IZR;FKHZ@ THE RESPONDENT- ITO, JHUNJHUNU 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 976/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR