VISHAL ENTERPRISE,VYARA V. NFAC,DELHI, ITO WARD 1, BARDOLI, INCOME TAX OFFICE-BARDOLI

ITA 1034/SRT/2024

AI Insights

The case involves Vishal Enterprise, which appealed against the order of the CIT(A) for the assessment year 2017-18. The primary issues revolved around the delay in filing the appeal and the substantive additions made to the income of Vishal Enterprise by the Assessing Officer (AO) under sections 69A and 115BBE of the Income-tax Act, 1961. The CIT(A) had dismissed the appeal in limine due to a significant delay in filing without condoning it, citing lack of sufficient cause. The Tribunal found that the CIT(A) had not adequately considered the reasons provided for the delay, which were attributed to issues with the assessee's email communication and unawareness of the assessment order until a later date.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 28404 (ITAT-SURAT)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2025
• 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: RASESH SHAH
• Keywords: Set aside; Business income
• Section: 147; 148; 144; 142(1); 250; 69A

Judgement Text

" p 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.1034/SRT/2024 Assessment Year: (2017-18) (Physical Hearing) Vishal Enterprise, Vyara S.O., Vyara, Surat – 394650, Gujarat Vs. The ITO, Ward – 1, Bardoli èथायीलेखासं./जीआइआरसं./PAN/GIR No: AACFV2047E (Appellant) (Respondent) Appellant by Shri Rasesh Shah, CA Respondent by Shri Mukesh Jain, Sr. DR Date of Hearing 07/01/2025 Date of Pronouncement 08/01/2025 आदेश / O R D E R PER BIJAYANANDA PRUSETH, AM: This appeal by the assessee emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’) dated 06.08.2024 by the learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [in short, ‘CIT(A)’] for the assessment years (AY) 2017-18. 2. The grounds of appeal raised by the assessee are as under: “1. On the basis of facts and circumstances of the case, as well as the law on subject, the Ld CIT(A) has erred in not condoning the delay in filing of appeal before Ld. CIT(A) 2. On the facts and circumstances of the case as well as law on the subject, the Ld. CIT(A) has erred in dismissing the appeal without passing speaking order. 3. On the facts and circumstances of the case as well as law on the subject. Ld. Assessing officer has erred in re-opening assessment u/s. 147 by issuing the notice u/s. 148 of the I.T. Act, 1961. 2 ITA No.1034/SRT/2024/AY.2017-18 Vishal Enterprise 4. On the basis of facts and circumstances of the case, as well as the law on subject, the Ld assessing officer has erred in making addition of Rs.13,00,000 u/s. 69A on account of alleged unexplained cash deposits 5. On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in taxing the addition by taking the rate @77.25% by attracting S. 115BBE instead of taxing as per normal tax slab. The addition if any that may be confirmed should be taxed as business income. 6. Even otherwise on the facts and circumstances of the case as well as law on the subject the assessing officer has erred in taxing the income u/s 115BBE @ 77.25% in a retroactive manner by applying the duly substituted S. 115BBE inserted retrospectively instead of taxing it at 35.54% as per the old provisions of S.115BBE. 7. It is therefore prayed that the assessment framed u/s 147 r.w.s. 144 r.w.s. 1448 of the I.T. Act may please be quashed and/or addition made by assessing officer may please be deleted. 8. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of assessment proceedings.” 3. The facts of the case in brief are that the assessee-firm had filed his return of income for the AY.2017-18 on 26.03.2018, declaring total income at Rs.1,23,130/-. The Assessing Officer (in short, ‘AO’) received an information that assessee had made cash deposited of Rs.13,00,000/- during the demonetization period i.e., from 09.11.2016 to 31.12.2016. The AO re-opened the case u/s 147 and issued notice u/s 148 on 30.07.2022 after obtaining necessary approval. However, the assessee-firm had not filed return of income for AY.2017-18 in response to the said notice. Various notices u/s 148 and 142(1) and show cause notice were issued to the assessee, but there was non-compliance to the notices. The AO asked assessee as to why the assessment should not be completed u/s 144 of the Act. In absence of the requisite details, the AO treated Rs.13,00,000/- u/s 69A as unexplained cash deposits and added the same to the total income of 3 ITA No.1034/SRT/2024/AY.2017-18 Vishal Enterprise the assessee. The AO assessed the total income of Rs.14,23,130/- against the returned income of Rs.1,23,130/- u/s 147 r.w.s. 144 r.w.s. 144B of the Act. 4. Aggrieved by the order of AO, the assessee filed this appeal before the CIT(A). The CIT(A) observed that assessment order was passed on 08.05.2023, but the appellant had filed appeal on 01.03.2024, which was delayed by 329 days. The appellant had not even acknowledged this delay in the Form No.35. He held that in condoning the delay, the appellate authority must be satisfied that there has been due diligence on the part of the appellant and it was not guilty of negligence. The CIT(A) relied upon various decisions and observed that it is a settled position that in case of delay, the assessee had to make out case of having sufficient cause and producing evidence towards the same to strengthen the plea of the assessee. The appellant had not made any submissions during appellate proceedings. The CIT(A) held that the appellant had not made a case for having “sufficient cause” for delay in filing appeal. The appeal filed by the appellant was held to be invalid and non-maintainable, being out of time. He, therefore, did not admit the appeal and dismissed the same in limine. 5. Aggrieved by the order of CIT(A), the assessee filed appeal before the Tribunal. The learned Authorized Representative (ld. AR) of the assessee submitted that in Form No.35, at column no.11, the assessee had stated that “Due to limited characters provided in this E-form, the full text of Statement of Facts is attached in other attachments which may be considered for the purpose of appeal”. He submitted that the reasons for the delay was mentioned at para 7 of the statement of facts. He fairly admitted that in the column no.14, it was 4 ITA No.1034/SRT/2024/AY.2017-18 Vishal Enterprise submitted that there was no delay in filing appeal. However, the same was an inadvertent mistake because the reasons for delay had already been mentioned in the statement of facts. He requested that another opportunity may be given to the assessee. 6. On the other hand, learned Senior Departmental Representative (ld. Sr. DR) of the revenue submitted that the Bench may decide the matter as deemed proper. 7. We have heard both the parties and perused the materials available on record. The CIT(A) has refused to condone the delay and held that the appeal is invalid and non-maintainable being out of time. Since the appeal was dismissed at the threshold, no comments were made on the merits of the case. The ld. AR submitted that the CIT(A) has not considered the reasons given by the assessee for delay in filing the appeal. He submitted that in Form No.35, the assessee at column no.11 had stated that the Statement of Facts are separately attached. He submitted copy of Statement of Facts from which it is seen that the facts are at para 1 to 6 of the said attachment. At para 7, the assessee had given the reasons for condonation of delay, which may be reproduced below for ready reference: “Condonation of delay: 7. It is to be noted that there is a delay of 298 days in filing the appeal. The delay is due to the fact that the primary e-mail id i.e., [e-mail] mentioned on ITBA portal was inoperative as it is of previous advocate of the assessee. Thereafter, the email-id was changed to [e-mail]. Hence, the assessee was not aware about the assessment order passed by Ld. Assessing Officer. Assessee was in receipt of order u/s 271AAC dated 22.11.2023 and on receipt of the same then the assessee came to know about the assessment order passed by Ld. Assessing Officer. Your good self is kindly requested that the delay may please be condoned.” 5 ITA No.1034/SRT/2024/AY.2017-18 Vishal Enterprise 8. We find that the CIT(A) has not considered the above request of the assessee to condone the delay by stating that assessee had not made any submission for condonation of delay. Perusal of the facts mentioned above reveals that the assessee had in fact given the reasons for delay in filing appeal. The reasons given was not at all considered by the CIT(A). Therefore, we deem it proper to set aside the order of CIT(A) and restore the matter to his file to consider the reasons for condonation of delay. The CIT(A) may seek further clarification or details if it is warranted. If he is satisfied that appellant had sufficient cause for not presenting the appeal within the meaning of section 249(3) of the Act, he may admit the appeal and decide the case on merit. For statistical purpose, the appeal of the assessee is allowed. 9. In the result, appeal of the assessee is allowed for statistical purpose. Order is pronounced in the open court on 08/01/2025. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat Ǒदनांक/ Date: 08/01/2025 SAMANTA Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat "