NITINKUMAR MANUBHAI PATEL,SURAT V. ITO, WARD-3(2)(8), SURAT

ITA 1159/SRT/2024

AI Insights

This case involves an appeal by Nitinkumar Manubhai Patel against the ex parte order of the National Faceless Appeal Centre (NFAC), Delhi, which confirmed the addition of Rs.20,71,000 as income during the demonetization period under section 115BBE of the Income Tax Act, 1961. The primary issues were the adequacy of the opportunity provided to the assessee by the CIT(A) and the correctness of the addition of the cash deposit during the demonetization period. The Tribunal noted procedural lapses in the service of notices and the final order, which were not sent to the email address specified by the assessee, leading to the decision to restore the matter for a fresh assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 472202 (ITAT-SURAT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MUKESH JAIN
• Assessee Lawyers: P. M. JAGASHETH
• Keywords: Condonation of delay
• Section: 250

Judgement Text

" आयकर अपीलीय अिधकरण, सूरत Ɋायपीठ, सूरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.1159/SRT/2024 (AY 2017-18) (Physical court hearing) Nitinkumar Manubhai Patel 23, Patel Faliya, Varachha Road, Nana Varachha, Surat-395 006 [PAN : ABYPP 4221 H] बनाम Vs Income Tax Officer, Ward- 3(2)(8), Surat, Aaykar Bhawan, Majura Gate, Opp. New Civil Hospital, Surat-395 001 अपीलाथŎ/Appellant ŮȑथŎ /Respondent िनधाŊįरती की ओर से /Assessee by Shri P.M. Jagasheth. CA राजˢ की ओर से /Revenue by Shri Mukesh Jain– Sr-DR सुनवाई की तारीख/Date of hearing 17.02.2025 उद ्घोषणा की तारीख/Date of pronouncement 03.03.2025 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the ex parte order of National Faceless Appeal Centre, Delhi [for short to as “NFAC/Ld.CIT(A)] dated 28.09.2023 for assessment year (AY) 2017-18, in confirming the addition in the assessment order on account of cash deposit during demonetization period of Rs.20,71,000/- and taxing the same under section 115BBE of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). Though, the assessee has raised multiple grounds of appeal, however, in our considered view the substantial grounds of appeal relates to (i) if Ld.CIT(A) not allowed adequate opportunity by passing the ex parte order and (ii) if Ld.CIT(A) erred in confirming the addition of cash deposit during demonetization period and taxing the same under section 115BBE of the Act. ITA No.1159/SRT/2024 (A.Y.17-18) Nitinkumar M Patel 2 2. Rival submissions of both the parties have been heard and record perused. The Ld. Authorized Representative (Ld.AR) of the assessee fairly submits that there is delay of 347 days in filing appeal before Tribunal. The delay is neither intentional nor deliberated, rather due to reasons beyond control of assessee. The AR of the assessee further submits that assessee while filing appeal before Ld.CIT(A), in column-17 in Form-35 clearly mentioned e-mail address [e-mail] for the purpose of notices and service of order in appeal. However, first notice of hearing under section 250 was sent through e-mail on [e-mail] and second and third notices of hearing were sent through e-mail [e-mail]. In response to second notice, assessee his AR sought adjournment vide application dated 26.06.2023. However, subsequent notice though received by assessee but could not communicated to his authorized representative under bona fide mistake. The final order passed by Ld. CIT(A) was not received either on the e-mail through his notices were served or through e-mail provided in Form-35. In first week of November, 2023 when searching ITBA portal, his AR realized/ came to know that appeal has already been dismissed and order is available on ITBA portal on 28.09.2023. The assessee immediately took necessary steps for filing present appeal before Tribunal. The Ld. AR of the assessee submits that he has already filed copy of ITBA portal showing service of notice through different e-mail addresses than the e-mail provided while filing first appeal before Ld.CIT(A). The Ld. AR of the assessee submits that assessee has a good case on merit and is likely to succeeds if one more opportunity is given. ITA No.1159/SRT/2024 (A.Y.17-18) Nitinkumar M Patel 3 3. On merit, Ld. AR of the assessee submits that Assessing Officer made addition of entire cash deposit during demonetization period. The Ld. AR of the assessee submits that Assessing Officer as well as Ld. CIT(A) both passed their ex parte order. Therefore, matter may be restored back to the file of Assessing Officer for passing afresh order after giving opportunities of being heard to assessee. 4. On the other hand, Ld. Senior Departmental Representative (Ld. CIT-DR) for the Revenue, on the plea of condonation of delay submits that Ld. AR of the assessee has made general submission. When the notices were served/or responded/complied though only through seeking adjournment, thus, the assessee cannot take the plea on the final order of dismissal was not served upon the assessee. On merit, Ld. Sr-DR for the Revenue submits that assessee was given sufficient opportunities, still assessee failed to avail such opportunity. Thus, the assessee does not deserve any further opportunity. Even if, the Bench is of the opinion that assessee deserves any further opportunity, matter may be restored back to the file of Assessing Officer with the direction to assessee to be more vigilant and to make proper compliance in time as and when called for. 5. We have considered the rival submissions of both the parties and have gone through order of lower authorities carefully. Firstly, we are considering the plea of condonation of delay in filing appeal before Tribunal. We find that main submission of Ld. AR of the assessee is that at the time of filing first appeal before Ld. CIT(A) in Form-35 assessee provided e-mail address of his present AR i.e., [e-mail]. However, no such notice or final order ITA No.1159/SRT/2024 (A.Y.17-18) Nitinkumar M Patel 4 passed by Ld. CIT(A) was not served through such e-mail, we also find that Ld.AR of the assessee fairly accepted that notices of hearing under section 250 was served through different e-mail ID and in in response to such notice, the assessee sought adjournment but mistake one of the last date of hearing, the assessee could not sought adjournment nor filed his submissions. From the screen shot of ITBA portal, we find merit in the submissions of ld AR of the assessee that neither notices under section 250 was issued on the e-mail provided by the assessee on Form-35 nor final order in dismissing the appeal was sent or served on the assessee. Thus, considering the peculiar fact and circumstances of the present case, delay in filing of appeal before Tribunal is condoned. Now adverting to merit to merit of assessee’s case. 6. We find that Assessing Officer as well as Ld. CIT(A) both passed their ex parte order. We find that assessee while filing his return of income has shown income from salary as well as interest income. There is no dispute that during demonetization period, assessee made cash deposit of Rs.20,71,000/-. The Assessing Officer added entire cash deposit without giving benefit of cash-in- hand, if any, or Circular No.3 of 2017 issued by Central Board of Direct Taxes (CBDT) for guiding officer/Assessing Officer for allowing relief of certain cash deposit due to demonetization of higher currency noted in November, 2016. Considering the fact that substantial right of assessee are involved in the present case. From the actions of assessee, we find that assessee is interested in pursuing his appeal on merit. Therefore, in the interest of justice, we deem it appropriate to restore the appeal back to the file of Assessing Officer to pass the assessment order afresh and in accordance with law. Needless to direct ITA No.1159/SRT/2024 (A.Y.17-18) Nitinkumar M Patel 5 that before passing order afresh, the Assessing Officer shall provide reasonable opportunity to the assessee. The assessee is also directed to be more vigilant and to make timely compliance of the notice issued by Assessing Officer. With these directions, the grounds of appeal of assessee is allowed for statistical purposes. 7. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 03/03/2025. Sd/- Sd/- (BIJAYANANDA PRUSETH) (PAWAN SINGH) लेखा सद˟/Accountant Member Ɋाियक सद˟/Judicial Member सूरत / Surat Dated: 03/03/2025 Dkp Outsourcing Sr.P.S* आदेश की Ůितिलिप अŤेिषत/ Copy of the order forwarded to :  अपीलाथŎ/ The Appellant  ŮȑथŎ/ The Respondent  आयकर आयुƅ/ CIT  िवभागीय Ůितिनिध, आयकर अपीलीय आिधकरण, सूरत/ DR, ITAT, SURAT  गाडŊ फाईल/ Guard File // True Copy // By order/आदेश से, सहायक पंजीकार आयकर अपीलीय अिधकरण, सूरत "