MR. GODWIN DONALD BARRETO ,MUMBAI V. INCOME TAX OFFICER 35(1)(4), MUMBAI

ITA 5487/MUM/2025

AI Insights

The case involves Mr. Godwin Donald Barreto, who appealed against the order of the Commissioner of Income Tax (Appeals), which confirmed the assessment made by the Income Tax Officer for the assessment year 2015-16. The primary contention was the non-receipt of notices and the final order on the designated email ID, leading to an ex-parte decision by the CIT(A). The Tribunal found that the assessee did not receive the necessary communications due to an error in the email ID used by the department, which was not the one provided in the official forms. Consequently, the Tribunal decided to restore the case to the CIT(A) for a re-assessment, emphasizing the need for substantial justice over technicalities.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 788699 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: misc
• Appeal Filed On: 02-09-2025
• Other Referred Cases: Land Acquisition Collector Vs. Mst. Katiji& Ors., [1987] AIR 1353 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V. K. CHATURVEDI
• Assessee Lawyers: NISHIT GANDHI
• Keywords: Condonation of delay; Unexplained cash credit
• Section: 143(3); 68

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH MUMBAI BEFORE HON’BLE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER ITA No. 5487/Mum/2025 (Assessment Year: 2015-16) Mr. Godwin Donald Barreto Barreto Housekon Divita Village, Ramkrishna Mandir Road Andheri East, Opp., Mumbai-4000059 Vs. Income Tax Officer- 35(1)(4), Aayakar Bhawan, Maharshi Karve Road, New Marine Lines, Mumbai-400020 PAN/GIR No. AKLPB7203R (Applicant) (Respondent) Assessee by Shri Nishit Gandhi Revenue by Shri V. K. Chaturvedi, SR. DR. Date of Hearing 26.11.2025 Date of Pronouncement 28.11.2025 आदेश / ORDER PER SANDEEP GOSAIN, JM: The present appeal has been filed by the assessee arises out of order dated 12.06.2024 passed u/s 143(3) of the Income Tax Act, 1961 (‘the Act’), by the Commissioner of Income Tax, ADDL/JCIT (A)-1, Surat, for the assessment year 2015-16. 2. At the very outset, I noticed that there is delay of 367 days in filing present appeal and in this regard an Printed from counselvise.com 2 ITA No. 5487/Mum/2025 Mr. Godwin Donald Barreto application for seeking condonation of delay has been filed by the assessee, wherein it has been mentioned as under: 1. The Appellant is regularly assessed to tax under PAN AKUPR7203R. For the relevant assessment year AY 2015-16, he filed his return of income declaring income under the head salaries of Rs.838,987/-, loss from derivative transactions and trading in shares at Rs. 14,53,959/- after set off of Rs.85.200/- in the current year and income from other sources at Rs.37,341/-. Apart from this he claimed a deduction u/e VIA of the Income Tax Act, 1961 [\"the Act\"]. 2. His case got picked up for limited scrutiny assessment for the reasons mentioned in the assessment order. While framing the assessment, the learned Income Tax Officer 35 (1)(4) [\"the Ld. AO\"] first took the salary at Rs.9.53.526/-. Thereafter, he assumed an ad-hoc figure of Rs.3,60,000/- [Rs.30,000/- per month] as household expenses. These assumed expenses of Rs.3,60,000/- were reduced from the assumed salary of Rs.9,53,526/- and thereafter the loss of Rs. 20.26.370/- incurred in trading in shares and derivatives was set off against the balance salary of Rs.5,93,526/- [Rs. 9,53,526/- Rs.3,60,000/-] to arrive at a balance loss of Rs. 14,32,844/- [Rs.20,26,370/- minus Rs.5,93,526/-]. 3. Thereafter, this balance loss of Rs. 14,32,844/- was added to the income of the Assessee as unexplained cash credit u/s 68 of the Act despite the fact that there is no such credit in the books of the Assessee and in fact there is a loss which means a debit in the books of the Assessee. 4. Against this action of the Ld. AO, the Appellant filed an appeal before the Ld. CIT(A) online wherein the email ID specifically asked for and provided by the Assessee was [e-mail]. The appeal was subsequently transferred to the National Faceless Appeals Centre [NFAC]. However, the emails of the Printed from counselvise.com 3 ITA No. 5487/Mum/2025 Mr. Godwin Donald Barreto Notices were sent to some other email ID. As such the Assessee could. Not reply to the said notices. As a result the CIT(A), NFAC decided the appeal ex-parte and confirmed the assessment order. 5. However, even this order of the Ld. CIT(A) was sent on some other email ID. No physical copy of the order was served on the Assessee. Further, since the Appellant does not have a regular chartered Accountant, he was not aware of the order having been uploaded on the portal. It is only on receipt of the notice for ecovery/on veryon 08.07.2025 that the Appellant realized that an order was passed against him by the Id. CIT(A). This notice of recovery was sent on the correct email ID [e-mail]. As such, immediately on receipt of the said recovery notice, the Appellant contacted a tax consultant who checked the current status of the appeal and discovered that an order has actually been passed against the Assessee. He thereafter, suggested to take advice from a Tax Specialist/Tax Counsel for further course of action. It is only after holdinga meeting with the Tax Specialist/Tax Counsel, it was understood that an appeal was to be filed against the order of the Ld. CIT(A). 6. As such under advice from the Counsel, against this action of the Ld. CIT(A) and the ld. AO, the Appellant has preferred the present appeal with a prayer to condone the delay in filing this appeal, since (i) The delay is caused for reasons beyond the control of the Assessee; (ii) The delay was not deliberate or intentional; and; (iii) No prejudice would be caused to the Revenue since ultimately the appeal is to be decided on merits and on the other hand grave and irreparable damage would be caused to the Appellant since an effective remedy before this final fact finding authority would be lost. 7. The Appellant accordingly most humbly prays that the captioned appeal be adjudicated on merits. Printed from counselvise.com 4 ITA No. 5487/Mum/2025 Mr. Godwin Donald Barreto 3. On the other hand Ld. DR refuted the contents contained in the application and requested for dismissal of the same. 4. Considering the entire factual position as explained before us and also keeping in view, the principles laid down by Hon’ble Supreme Court in the case of Land Acquisition Collector Vs. Mst. Katiji& Ors., [1987] AIR 1353 (SC),wherein it has been held that where substantial justice is pitted against technicalities of non-deliberate delay, then in that eventuality substantial justice is to be preferred. In my view the principals of advancing substantial justice is of prime importance. Hence considering the explanation put forth by the Assessee by justifiably and properly explaining the delay which occurred in filing the appeal and construing the expression\" sufficient cause\" liberally I am inclined to condone the delay in filing the appeal before the Tribunal. Therefore I condone the delay and admit the appeal to be heard on merits. 5. At the very outset, I noticed that assessee was ex- parte before Ld. CIT(A). According to the assessee he had not received noticed on the designated e-mail id mentioned in Form -35. During the course of hearing I had sought report from the department wherein it was categorically mentioned that notices were served upon the e-mail id Printed from counselvise.com 5 ITA No. 5487/Mum/2025 Mr. Godwin Donald Barreto [e-mail]. It was also submitted by Ld. CIT(A) as in the faceless appellate proceedings the e-mail Id are automatically fetched by ITBA as per efiling details provided by the assessee while generating the notices as per details available on system. 6. Be that as it may and without going into the merits of this appeal, it is an admitted fact that notices during the appellate proceedings before Ld. CIT(A) were not received by the assessee on the designated e-mail id mentioned in Form -35. Therefore because of this reason the assessee could not appear before Ld. CIT(A). Under these circumstances Bench is of the view that ends of justice would be served in case the matter is be restored the matter back to the file of Ld. CIT(A) for deciding the same afresh by providing adequate opportunity of hearing to the assessee and with a direction that since matter pertains to A.Y 2015-16 therefore the same may be adjudicated by Ld. CIT(A) expediously. The assessee shall not seek any adjournment on frivolous grounds and shall remain cooperative during the course of proceedings. 7. Before parting, I make it clear that our decision to restore the matter back to the file of the Ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute which shall be adjudicated by the Ld. CIT(A) independently in accordance with law. Printed from counselvise.com 6 ITA No. 5487/Mum/2025 Mr. Godwin Donald Barreto 8. In the result the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 28.11.2025 Sd/- (SANDEEP GOSAIN) JUDICIAL MEMBER Mumbai, Dated 28/11/2025 आदेश की \bितिलिप अ\u000eेिषत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. \u000eथ / The Respondent. 3. संबंिधत आयकर आयु\u0019 / The CIT(A) 4. आयकर आयु\u0019(अपील) / Concerned CIT 5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण,मु\u0003बई/ DR, ITAT, Mumbai 6. गाड फाईल / Guard file. आदेशानुसार/BY ORDER, स\u000eािपत ित //True Copy// उप/सहायक पंजीकार ( Asst. Registrar) आयकर अपीलीय अिधकरण, मु\u0003बई मु\u0003बई मु\u0003बई मु\u0003बई / ITAT, Mumbai Printed from counselvise.com "