SHRI HANIF HASAM AVEDIYA,MANGROL V. THE AO/NFAC, JUNAGADH, JUNAGADH

ITA 133/RJT/2024

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The case involves Hanif Hasam Avediya, a wholesale trader in green coconuts, who appealed against the order of the National Faceless Appeal Centre (NFAC) which dismissed his appeal due to a delay of 163 days in filing. The original assessment order was passed under sections 147, 144, and 144B of the Income Tax Act, 1961, adding significant amounts to the assessee's taxable income based on unexplained cash deposits and withdrawals. The Tribunal found that the reasons provided by the assessee for the delay were sufficient and constituted a reasonable cause to condone the delay. The Tribunal also noted that the assessee was not aware of the tax proceedings and had not received proper notices, leading to the decision to restore the matter to the Assessing Officer for a fresh assessment.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 30057 (ITAT-RAJKOT)
• Duration Of Justice: 8 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 10-10-2024
• Assessment Year: 2018-2019
• Appeal Filed On: 07-03-2024
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Assessee Lawyers: CHETAN AGARWAL; BRIJESH PAREKH
• Keywords: Condonation of delay; Reasonable cause
• Section: 147; 148; 250; 13; 139

Judgement Text

" आयकरअपील\tयअ धकरण,राजकोट\u0011यायपीठ,राजकोट। IN THE INCOMETAXAPPELLATE TRIBUNAL, RAJKOT BENCH: RAJKOT BEFORE DR.ARJUN LAL SAINI, ACCOUNTANT MEMBER and SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकरअपीलसं./I.T.A. No.133/RJT/2024 (\u0002नधा\u0006रणवष\u0006 / Assessment Year : 2018-19) Hanif Hasam Avediya B/h Ibrahim Masjid, Mangrol– 362235 बनाम/ Vs. Income tax office, Bhootnath Chamber, Opp. Boudin College, Junagadh \u0015थायीलेखासं./जीआइआरसं./PAN/GIR No. :AYBPA 9585H (अपीलाथ\u001a/Appellant) .. (\u001b\u001cयथ\u001a / Respondent) अपीलाथ\u001aक\u001d ओरसे/ Appellant by : Shri Chetan Agarwal, AR& Shri Brijesh Parekh, AR \u001b\u001cयथ\u001aक\u001dओरसे/Respondent by : Shri Abhimanyu Singh Yadav, Sr-DR सुनवाईक\u001dतार\tख/ Date of Hearing 10/10/2024 घोषणाक\u001dतार\tख /Date of Pronouncement 13/ 11 /2024 आदेश / O R D E R PER SHRIDINESH MONHAN SINHA, JUDICIALMEMBER : Captioned appeal filed by the assessee is directed against the order passed by the National Faceless Appeal Centre [(in short “NFAC/Ld.CIT(A)”] vide order dated 27/01/2024, which in turn assessment order passed by Assessment Unit, Income Tax Department / Assessing Officer under section 147 r.w.s. 144 r.w.s. 144B of the Income Tax Act, 1961 (in short “the Act”) on 21.03.2023. 2. The grounds of appeal raised by the assessee are as follows: “ Ld. Commissioner of Income tax (appeals), National Faceless Appeal Centre has erred in law and facts in not condoning delay of 163 days in filing the appeal in terms of section 249(2) of the Act and dismissing the appeal in limine; Your appellant craves leave to add, alter or withdraw any one or more grounds of appeal.” 3. Facts in brief are that appellant, an individual, is engaged in the business of wholesale trading in green coconuts, etc. the assessee was unaware of accounting process, tax compliance. Return of income was filed in terms of provisions of ITA No.133/Rjt/2024 (AY 18-19) Hanif Hasam Avediya - 2 - section 139 of the Act. The appellant is having current and savings accounts with Axis Bank, Mangrol Brach and Veraval Branch which were utilized for his wholesale trading in green coconut. The details are as under: Name of the branch Nature Deposits Withdrawals Mangrol branch Current 1,09,43,650 2,22,26,260 Veraval branch Savings 14,41,000 -- Total 1,23,84,650 2,22,26,260 The jurisdictional Assessing Officer initiated proceedings u/s 147 of the Act and there was no valid service of notice u/s 148 of the Act, besides only one notice dated 25.01.2023 was communicated to the appellant and subsequent thereto there was no service of notices. The tax consultant deployed at Junagadh initially did not care for follow-up compliance, except seeking adjournment and the appellant was not aware of the proceedings. On account failure a part of the assessee in furnishing relevant documentary evidence for explaining the nature and source of deposit used for cash withdraw, the deposit equivalent of Rs. 1,12,82,610/- an added in taxable income of the assessee u/s. 68A of the Income Tax Act, 1961 and to be taxed u/s. 115BBE of the Act. Description Amount Income as per return of Income filed 0 Income as computed u/s. 143(1)(a) NA Addition in respect of issue of cash deposits 1,23,84,650/- Addition in respect of issue of cash withdrawal 1,12,82,610/- Total income assessed 2,38,67,260/- 4. Against the assessment order passed by Ld.AO on 21.03.2023 assessee preferred an appeal before Ld.CIT(A). The Ld.CIT(A) dismissed the appeal of assessee on ground of delay of 163 days in filing the appeal no sufficient or good reasons for condonation of delay of more than 163 days in filing appeal was submitted by the assessee. Accordingly, the appeal was dismissed as barred by limitation vide order dated 27.01.2024. 5. Feeling aggrieved by the order of ld CIT(A), the assessee is in appeal before us for delay in filing the appeal before Ld.CIT(A) that assessee has ITA No.133/Rjt/2024 (AY 18-19) Hanif Hasam Avediya - 3 - filed an affidavit of the assessee dealing with cause of delay in filing the appeal before the Ld.CIT(A), which is reproduced below: “I am Hanif Hasam Avediya, Mangrol, Bharatiya adult residing behind Ibrahim Maszid Mangrol do hereby declare on solemn affirmation that: I started the business in the wholesale trading in green coconut on large scale very recently and was unaware of maintaining regular books or was not aware of Income-tax (in short, “Act”) compliance; There was no valid service of notice u/s 148 of the Act and on receipt of notice dated 25.01.2023,, your petitioner contracted tax consultant stationed as Junagadh seeking guidance on follow up action on notice for which he sought adjournment, as I learnt; I am not aware or used to verify Income-tax portal for subsequent Income-tax proceedings and the tax consultant entered his e-mail in Income-tax portal as such there was no communication of proceedings on my e-mail address; Even, the existence of assessment order dated 21.03.2023 passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act came to notice very recently and immediately the tax consultant sanctioned at Veraval was contracted for necessary guidance and follow up action; At the instance of guidance of tax consultant stationed at Veraval, necessary formality is under taken for filing an app[al u/s 250 of the Act against assessment order dated 21.03.2023 passed u/s 147 r.w.s. 144 r.w.s. 144B of the Act; The above statement is true to the best of my knowledge and belief.” 6. Ld. AR of the assessee submitted That the main reasons for not filing the appeal before the Ld.CIT(A) in time was due to that the assessee was not knowing anything about the appeal proceedings before the Ld.CIT(A). Finally, when assessee approached to his tax consultant who advised him to file appeal before Tribunal and on that basis the appellant filed appeal before Tribunal and started legal process. The Ld. AR of the assessee submitted that assessee does not know about website ITBA portal, that no notice has been served on the assessee. The assessee was not knowing about proceedings either before Ld. Assessing Officer or appellate proceedings before Ld.CIT(A). The appellant has prayed that he is ready with documents and ITA No.133/Rjt/2024 (AY 18-19) Hanif Hasam Avediya - 4 - represent his case before lower authorities in case one more opportunity should be given to appellant. 6. On the other hand, Ld. Sr. DR for the Revenue supported the order of lower authorities. He submits that assessee is relying upon a self-serving story and without any supporting documents. Ld. Sr. DR for the Revenue further stated that assessee does not know the tax proceedings even if the stand taken by Ld. AR for the assessee is considered as true, the assessee was required to file appeal within thirty days. However, the appeal before Ld. CIT(A) was filed on 25.09.2020. The assessee does not deserve any leniency. The Ld. Sr. DR for the Revenue submits that assessee has not shown any reasonable and plausible cause for condoning the delay. Thus, the action of Ld.CIT(A) in not condoning the delay may kindly be affirmed. 7. We have heard both the parties and perused the materials available on record. We note the contention of both the parties and have gone through the orders of lower authorities carefully. We find that assessment order was completed under section 144 and 147 r.w.s. 144B of the Act on 21.03.2023. Before passing the assessment order, Assessing Officer issued number of notices, for fixing the date of hearing neither the assessee complied with the notices nor filed return of income in response to notice. Resultantly, the Assessing Officer assessed of Rs. 2,36,67,260/- u/s. 147/144 r.w.s. 144B. that appellant filed an appeal before the Ld.CIT(A) on dated 30.09.2023 along with an application for condonation of delay in filing of an appeal that Ld. CIT(A) dismissed the appeal on the ground that no sufficient and good reason for condonation of delay was established. We find that before dismissing the application for condonation of delay, the Ld. CIT(A) has not recorded any finding whether any date of hearing was fixed for seeking comments / written ITA No.133/Rjt/2024 (AY 18-19) Hanif Hasam Avediya - 5 - submission of assessee or not. The appeal was filed on 30.09.2023 and same was dismissed vide order dated 27.01.2024. 7.1 We have examined the facts and find that the Assessing Officer passed ex parte assessment order on 21.03.2023. The Ld. AR of the assessee claimed that the assessee came to know about passing of assessment order recently and manually follow up with Tax consultant though the assessee was required to file appeal within thirty days from the receipt of assessment order. We note that reasons explained by assessee before ld.CIT(A) to condone the delay were sufficient and these reasons would constitute a reasonable cause to condone the delay of 163 days. Hence, we condone the delay of 163 days in filing the appeal before Ld. CIT(A). We find that Ld.CIT(A) has dismissed the appeal of assessee without giving any opportunity. Therefore, instead of going into further controversy we deem it appropriate that assessee may be allowed one more opportunity to represent the case on merit before the lower authority. Since, the Assessing Officer also passed an ex-parte order, therefore, the matter is restored back to the file of Assessing Officer, to decide all the issue afresh in accordance with law. Needless to direct that the Assessing Officer shall pass order after giving fair and reasonable opportunity to the assessee. The assessee is also directed to be more vigilant in future in making compliance in time and further suggested, not seeking further adjournment without any valid reason and furnishing all relevant and necessary evidences in the case. With these directions the appeal of assessee is allowed for statistical purposes. ITA No.133/Rjt/2024 (AY 18-19) Hanif Hasam Avediya - 6 - 8. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the Open Court on 13 / 11 /2024 sd/- sd/- (DR. ARJUN LAL SAINI) (DINESH MOHAN SINHA) लेखासद\u0007य/ Accountant Member \tयाियकसद\u0007य/ Judicial Member राजकोट/Rajkot )दनांक/ Date: 13 / 11/2024 DKP Outsourcing Sr.P.S आदेशक\u000e\u000fितिलिपअ\u0013ेिषत/ Copy of the order forwarded to : • अपीलाथ\u0017/ The Appellant • \u000f\u0018यथ\u0017/ The Respondent • आयकरआयु\u001b/ CIT • आयकरआयु\u001b(अपील)/ The CIT(A) • िवभागीय\u000fितिनिध, आयकरअपीलीयआिधकरण, राजकोट/ DR, ITAT, RAJKOT • गाड&फाईल/ Guard File By order/आदेशसे, सहायकपंजीकार आयकरअपील\tयअ धकरण ,राजकोट 1. Date of dictation 16.10.2024(dictation-pad attached at the end of this appeal-file) 2. Date on which the typed draft is placed before the Dictating Member …17.10.2024 3. Other Member… 4. Date on which the approved draft comes to the Sr.P.S./P.S…………….. 5. Date on which the fair order is placed before the Dictating Member for Pronouncement…… 6. Date on which the fair order comes back to the Sr.P.S./P.S……. 7. Date on which the file goes to the Bench Clerk………………… 8. Date on which the file goes to the Head Clerk…………………………………... 9. The date on which the file goes to the Assistant Registrar for signature on the order…………………….. 10. Date of Dispatch of the Order……………… "