JITENDRA KUMAR BANJARE,SIMGA V. INCOME-TAX OFFICER, WARD-1(1), RAIPUR

ITA 186/RPR/2024

AI Insights

The case involves Jitendra Kumar Banjare, the appellant, who contested the order of the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center, Delhi, which confirmed the addition of Rs.11,78,900 as unexplained cash deposits under Section 69 of the Income-tax Act, 1961. The appeal to the Tribunal was initially challenged for being time-barred; however, it was found that the assessee had not received proper notice of the CIT(Appeals)'s order due to a failure in the service of notice, which was crucial for the delay. The Tribunal noted the assessee's right to a fair hearing and the principles of natural justice, leading to the decision to restore the case to the CIT(Appeals) for a fresh examination.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 469752 (ITAT-RAIPUR)
• Duration Of Justice: 6 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Next Hearing Date: 21-11-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 30-04-2024
• Other Referred Cases: Chuharmal vs Commissioner of Income-tax, Smt. Srilekha Banerjee and other vs. CIT Bihar and Orissa, CIT, West Bengal-II v. Durga Prasad More
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHAL AGRAWAL
• Assessee Lawyers: YOGESH SETHIA; VIRTUE OF SECTION A COUPLED
• Keywords: Opportunity of being heard; Onus to prove; Period of limitation; Principle of natural justice; Audi alteram partem
• Section: 147; 148; 250; 69; 69A; 101

Judgement Text

"आयकर अपीलȣय अͬधकरण Ûयायपीठ “एक-सदèय” मामला रायपुर मɅ IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH “SMC”, RAIPUR Įी रवीश सूद, ÛयाǓयक सदèय क े सम¢ BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER आयकर अपील सं. / ITA No.186/RPR/2024 Ǔनधा[रण वष[ / Assessment Year : 2013-14 Jitendra Kumar Banjare Tihupara, Tilda Road, Simga, Dist. Baloda Bazar-493 101 (C.G.) PAN: BFPPB3977L .......अपीलाथȸ / Appellant बनाम / V/s. The Income Tax Officer, Ward-1(1), Raipur ……Ĥ×यथȸ / Respondent Assessee by : Shri Yogesh Sethia, CA Revenue by : Shri Mohal Agrawal, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 21.11.2024 घोषणा कȧ तारȣख / Date of Pronouncement : 25.11.2024 2 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 आदेश / ORDER PER RAVISH SOOD, JM: The present appeal filed by the assessee is directed against the order passed by the Commissioner of Income-Tax (Appeals), National Faceless Appeal Center (NFAC), Delhi, dated 31.03.2022, which in turn arises from the order passed by the A.O under Sec.144 r.w.s. 147 of the Income-tax Act, 1961 (in short ‘the Act’) dated 16.12.2018 for the assessment year 2013-14. The assessee has assailed the impugned order on the following grounds of appeal: “1) In the facts and circumstances of the case and in law, the. Ld. Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC) has erred in not serving the order passed u/s.250 of the Income-tax Act, 1961 as per provisions of the Act and Rules made thereunder. 2) In the facts and circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals), NFAC has erred in confirming action of Ld. Assessing Officer initiating proceedings u/s.147 r.w.s. 148, 149 and 151 of the Income-tax Act, 1961 without fulfilling stipulated conditions. 3) In the facts and circumstances of the case and in law, the Ld. Commissioner of Income-tax (Appeals), NFAC is not justified in confirming action of the ld. Assessing Officer making the addition of cash deposit of Rs.11,78,900/- u/s.69 of the Income- tax Act, 1961. 4) The impugned order is bad in law and on facts. 5) The appellant reserves the right to addition, after or omit all or any of the grounds of appeal in the interest of justice.” 2. Shri Yogesh Sethia, Ld. Authorized Representative (for short 'AR') for assessee submitted that the appeal is time barred by 701 days. 3 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 Elaborating on the reason leading to the delay of 701 days involved in filing of the present appeal, the ld. AR has drawn my attention to the \"affidavit\" dated 01.05.2024 filed by the assessee. The ld. AR stated that though the assessee had specifically stated in “Form No. 35” that all notices/communications be sent in a mode otherwise through email but, neither of the four notices (as mentioned in the CIT(A)’s order intimating the fixation of the hearing of the appeal was ever physically served upon him. Also, the Ld. AR submitted that no physical/hard copy of the impugned order of the CIT(A) was ever received by the assessee. The learned AR to fortify his contention has taken me through “Form No. 35”, which revealed that the assessee had opted for receiving all notices/communications otherwise than through email. 3. Per contra, Shri Mohal Agrawal, Ld. Senior Departmental Representative (for short, 'Sr.DR') objected to the request for condonation of the delay involved in filing of the appeal by the assessee. It was submitted by him that as the delay of 701 days involved in filing the appeal was inordinate, therefore, the same does not merit to be condoned. 4. I have heard the learned authorized representatives of both the parties qua the issue of delay involved in filing the present appeal. Ostensibly, a perusal of “Form No.35” reveals that the assessee had opted 4 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 out of service of notices/communications through email. For the sake of clarity, the relevant extract of Form No. 35 is culled out as under: 5. Although, the assessee had specifically stated that all the notices/communications be sent otherwise then through email but no physical/hard copy of the order of the CIT(A) was ever served upon the assessee. The Ld. AR stated that it was only when the assessee’s Counsel, Shri Vineet Agrawal, CA had logged into the e-filing portal and gathered about the disposal of his appeal for AY 2013-14 on 31.03.2022 by the CIT(A), it was only pursuant thereto it had come to his notice that his appeal had been disposed of by the CIT(A). For the sake of clarity, the “affidavit” dated 01.05.2024 filed by the assessee is culled out as under: (relevant extract) 5 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 6 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 6. Admittedly, as the Department has failed to validly serve upon the assessee, a hard copy of the impugned order, therefore, I find no justification in reckoning the period of limitation from the date on which the impugned order is stated to have been dropped in his email account. As the assessee states that the impugned order of the CIT(A) had come to his notice on/after 15.04.2024 (supra), therefore, in all fairness, the period of limitation has to be reckoned from the said date. As the present appeal has been filed by the assessee on 30.04.2024 i.e. within the stipulated 7 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 time period of 60 days from the aforesaid date, i.e.15.04.2024, therefore, the same can safely be held to have been filed within the prescribed time. 7. I, thus, in terms of my aforesaid observations, condone the impugned delay of 701 days (as pointed out by the registry) in filing of the present appeal by the assessee. 8. Shri Yogesh Sethia, Ld. AR for the assessee submitted that though the assessee had filed a letter dated 16.04.2024 with the Income Tax Officer, Ward-1(1), Raipur requesting for a copy of assessment order passed by the A.O u/s. 147 r.w.s. 144 of the Act dated 16.12.2018, but the same had not been made available to him. The Ld. AR submitted that the assessee had not filed his return of income for A.Y. 2013-14. It was submitted by him that the case of the assessee was reopened u/s.147 of the Act for the reason that the assessee had made cash deposits of Rs.11,78,900/- in his savings bank account during the year under consideration. Notice u/s. 148 of the Act was issued to the assessee on 10.01.2018. 9. As per the CIT(Appeals)’s order, as the assessee during the course of the assessment proceedings had failed to explain the source of the cash deposits of Rs.11,78,900/-, therefore, the A.O vide his order passed u/s.147 r.w.s. 144 of the Act, dated 16.12.2018, after making an addition 8 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 of Rs.11,78,900/- u/s.69 of the Act determined the income of the assessee at Rs.11,86,910/-. 10. Aggrieved, the assessee carried the matter in appeal before the CIT(Appeals) but without success. As the assessee despite having been afforded four opportunities, viz. on 27.10.2021, 06.12.2021, 18.02.2022 and 28.03.2022 had failed to participate in the proceedings before the first appellate authority, therefore, the latter was constrained to proceed with the matter and dismiss the appeal. For the sake of clarity, the observations of the CIT(Appeals) are culled out as under: “7.1 During the appellate proceedings, the appellant was provided many opportunities as enumerated above. The appellant, for the reasons best known to him has remained non-compliant. No material facts have been brought on record to rebut the finding of the AO. There remains no doubt that statute has cast upon the appellant duty to explain the source of deposits/income for the assessment year under consideration but in the instant case appellant has failed to discharge the above onus. It is pertinent to mention the decision of Hon'ble Supreme Court involving the similar circumstances in the case of Chuharmal vs Commissioner of Income-tax [1988] 38 Taxman 190 (SC)/[1988] 172 ITR 250 (SC)/[1988] 70 ... [1988] 38 Taxman 190 (SC), wherein it was held as under: \"8. Section 69A of the Act was inserted in the Finance Act, 1964, and it came into force with effect from 1-1-1964. The High Court has rightly held that the expression 'income' as used in section 69A, has wide meaning which meant anything which came in or resulted in gain. Hence, in the facts of this case, a legitimate inference could be drawn that the asses see had income which he had invested in purchasing the wrist- watches and, as such, that income was subject to tax. In the view, the High Court was justified in justifying the Tribunal's holding that the assessee was the owner of the wrist-watches and, thus, including the value in the assessment of the income 9 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 of the assessee as his wealth and so deemed to be the income of the assessee by virtue of section 69A coupled with surrounding circumstances. Therefore, inclusion of the money in purchasing the wrist-watches, that is to say, Rs 87,455 was correct and proper for the assessment year under reference. In this connection, section 69A may usefully be set out as follows : \"69A. Unexplained money, etc.—Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year.\" So far as the first question is concerned, the High Court answered accordingly and in our opinion rightly.\" 7.2 Further, in the case of Smt. Srilekha Banerjee and other vs. CIT Bihar and Orissa 1964 AIR 697, the Hon'ble apex court held that the source of money not having been satisfactorily proved, the department was justified in holding it to be assessable income of the assessee form undisclosed sources. In the above case, it was further held by the Hon’ble Apex court that. the burden of proof was on the assessee which has not been discharged. The Hon'ble Supreme Court in the case of CIT, West Bengal-II v. Durga Prasad More 82 ITR 540 has stated that it is true that the apparent must be considered real until it is shown that there are reasons to disbelief and the taxing authorities are entitled to look into the surrounding circumstances to find out the matter has to be considered by applying the test of human probabilities. 7.3 Considering the above factual matrix of the case despite being given ample opportunities during assessment and appellate proceedings, failed to offer any, explanation about the nature and source of the cash deposit amounting to Rs.11,78,900/- in bank account. Accordingly, the addition of Rs.11,78,900/- is confirmed. Accordingly, the ground of appeal taken by the appellant is dismissed. 8. In the result, the appeal is dismissed.” 10 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 11. The assessee being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before the tribunal. 12. I have heard the Ld. Authorized Representatives of both the parties, perused the order of the CIT(Appeals) and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by the Ld. AR to drive home his contentions. 13. Shri Yogesh Sethia, Ld. AR submitted that the failure on the part of the assessee to participate in the proceedings before the CIT(Appeals) had occasioned for no fault on his part. Elaborating on his contention, the Ld. AR submitted that the assessee in memorandum of appeal i.e. in “Form 35” had specifically opted out of service of notices/communications from office of the CIT(Appeals) through email. The Ld. AR in order to buttress his aforesaid contention had drawn my attention to “Form 35”. The Ld. AR had also filed an “affidavit” dated 01.05.2024 wherein it is stated by him that he had not physically received the notices intimating the fixation of hearing of the appeal by the CIT(Appeals) i.e. either by speed post or by courier. Carrying his contention further, the Ld. AR submitted that as the assessee had remained divested of an opportunity to put up an appearance before the CIT(Appeals), therefore, could not demonstrate his case on merits before him. Further, the Ld. AR submitted that in case the assessee would have been validly put to notice about the fixation of his appeal, then 11 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 he would have come forth with an explanation before the appellate authority as regards the impugned addition of Rs.11,78,900/- that was made by the A.O u/s.69 of the Act. It was submitted by the Ld. AR that in the totality of the facts involved in the present case the matter in all fairness be restored to the file of the CIT(Appeals) for fresh adjudication after affording a reasonable opportunity of being heard to the assessee. 14. Per contra, the Ld. DR relied on the orders of the lower authorities. 15. I have thoughtfully considered the contentions advanced by the Ld. Authorized Representatives of both the parties in the backdrop of the orders of the lower authorities. Admittedly, it is a matter of fact borne from record that the assessee in the memorandum of appeal filed before the CIT(Appeals) i.e. in “Form 35” had specifically opted out of service of notices/communications from the office of the CIT(Appeals) through email. However, I find that despite the fact that the assessee had opted to receive notices/communications from the office of the CIT(Appeals) in a mode otherwise then through email but on no occasion any physical/hard copy of any notice intimating the fixation of the appeal on either of the four occasions i.e. on 27.01.2021, 06.12.2021, 18.02.2022 and 28.03.2022 was ever served upon him. Considering the aforesaid facts, I find substance in the contention of the Ld. AR that the assessee for no fault on his part had remained divested of an opportunity to participate in the proceedings 12 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 before the CIT(Appeals) and demonstrate his case on merits qua the addition of Rs.11,78,900/-that was made by the A.O u/s. 69 of the Act. 16. I am of the view that as the assessee had remained divested of an opportunity to put up his case on merits, which in my view is in violation of principles of natural justice i.e. audi alteram partem, therefore, the matter in all fairness requires to be restored to the file of the CIT(Appeals) for fresh adjudication after affording a reasonable opportunity of being heard to the assessee. As the matter is restored to the file of the CIT(Appeals), therefore, the assessee is directed to participate in the set- aside proceedings. Thus, the Grounds of appeal No.1 to 4 are allowed for statistical purposes in terms of the aforesaid observations. 17. As I have restored the matter to the file of the CIT(Appeals) for fresh adjudication, therefore, I refrain from adverting to the merits of the case as had been assailed by the assessee before me, which. thus, are left open. 18. Ground of appeal No.5 being general in nature is dismissed as not pressed. 13 Jitendra Kumar Banjare Vs. ITO, Ward-1(1), Raipur ITA No. 186/RPR/2024 19. In the result, appeal of the assessee is allowed for statistical purposes in terms of our aforesaid observations. Order pronounced in open court on 25th day of November, 2024. Sd/- (रवीश सूद /RAVISH SOOD) ÛयाǓयक सदèय/JUDICIAL MEMBER रायपुर/ RAIPUR ; Ǒदनांक / Dated : 25th November, 2024. ****SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G) 4. The Pr. CIT-1, Raipur (C.G) 5. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण,रायपुर बɅच, रायपुर / DR, ITAT, Raipur Bench, Raipur. 6. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur. "