WAKEEL AHAMAD,BAREILLY V. INCOME TAX OFFICER-2(3), BAREILLY

ITA 696/LKW/2024

AI Insights

The case involves an appeal by Mr. Wakeel Ahamad against the order of the CIT(A) which confirmed the addition of Rs.22,68,640 to the assessee's income for the assessment year 2010-11. The addition was initially made by the Assessing Officer (AO) under sections 147/144(1)(a) of the Income Tax Act, treating unexplained cash deposits in the assessee's bank account as income. The CIT(A) dismissed the appeal due to a 38-day delay in filing, which the assessee attributed to illness, supported by a medical certificate. However, the certificate was dated after the appeal was filed, leading to the dismissal of the appeal on procedural grounds. The ITAT upheld this decision, agreeing with the CIT(A) that the delay was not satisfactorily explained.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 471420 (ITAT-LUCKNOW)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Other Referred Cases: Prashant Projects Ltd. Vs. DCIT, Ashutosh Bhaadra v. Jatindra Mohan Seal, Hisaria Plastic Products v. CST, J.B. Advani& Co. (P.) Ltd. v. CIT
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJEEV KRISHNA SHARMA
• Keywords: Condonation of delay; Additional evidence; Reasonable cause; Period of limitation; Deemed to accrue or arise in india; Time period of passing order
• Section: 148; 144; 142(1); 69A; 72

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “SMC”, LUCKNOW BEFORE SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA No.696/LKW/2024 Assessment Year: 2010-11 Mr Wakeel Ahamad Sheeshgarh, Meerganj, Bareilly, Uttar Pradesh-243505. v. Income Tax Officer-2(3) Aayakar Bhawan, C.R. Building, Kamla Nehru Marg, Civil Lines, Bareilly, (UP)-243001. PAN:AJCPA9737B (Appellant) (Respondent) Appellant by: None (Adj. Application filed) Respondent by: Shri Sanjeev Krishna Sharma, Addl. CIT(DR) O R D E R PER ANADEE NATH MISSHRA, A.M.: This appeal has been filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals) [hereinafter referred as Ld. “CIT(A)”]/ National Faceless Appeal Centre (NFAC), Delhi dated 18.10.2024 for the assessment year 2010-11. The grounds of appeal of the assessee are as under: - “1 The Learned Commissioner of Income Tax (Appeal) has erred in law and facts of the are in confirming addition of Rs.22,68,640/- made by the Assessing Officer by dismissing the appeal of the assessee. 2. The Learned Commissioner of Income Tax (Appeal) has further erred in law and on facts in rejecting the additional evidences which go to the root of the matter. 3. The Learned Commissioner of Income Tax (Appeal) has further erred in law and on fact in rejecting the confirmation of the Medical Certificate under whose case the assessee was treated in the past. 4. The assessee reserves its right to add, amend, alter or delete any ground of appeal at the time of hearing.” ITA No.696/LKW/2024 Page 2 of 7 2. In this case, assessment order dated 26.10.2017 was passed by the Assessing Officer (“AO”) under section 147/144(1)(a) of the Act whereby the assessee’s total income was assessed at Rs.22,68,640/-. The Assessing Officer felt constrained to pass exparte assessment order under section 144 of the Act because the assessee failed to comply with the notices under section 148 of the Act and under section 142(1) of the Act. The Assessing Officer treated the amount of Rs.22,62,000/- deposited in cash in the assessee’s bank account as unexplained money. The Assessing Officer also took notice of interest amounting to Rs.6,643/- in the assessee’s Saving Bank Account and brought the same to tax. 2.1 The assessee’s appeal filed in the office of the Ld. CIT(A) was dismissed vide impugned appellate order dated 18.10.2024 of the Ld. CIT(A). The relevant portion of the impugned order of the Ld. CIT(A) is reproduced as under: - “6. Decision 6.1 The appeal has been filed by delay of 38 days. The assessee had provided the reason of delay in the Form 35 which is reproduced as below: “The assessment in the above mentioned case was completely by the Income Tax Officer Ward 2(3), Bareilly u/s 147/144(1)(a) of the Income Tax Act 1961. The unexplained money under section 69A amounting to Rs 2262000/has been added by the Learned Assessing officer treating said money as deemed income of the assessee. The assessment order was received by the assessee on 26/10/2017. The appeal should have been filed by the 25/11/2017. The appeal is being filed on 02/01/2018 after a delay of 38 days which may kindly be condoned as there was g reasonable cause in not furnishing the said appeal on time. It may be submitted that the assessee Shri Wakeel Ahamad had fallen ill and due to his illness, the appeal go; delayed and could not be filed in time. We are furnishing the medical certificate of the said assessee confirming his illness and a letter from him certifying the said facts. In view of the same, it is prayed that the delay may kindly be condoned in the interest of justice as the circumstances were beyond the control of the assessee.” In this regard, as per Section 249(2), appeal should be presented within 30 days of the following date: ITA No.696/LKW/2024 Page 3 of 7 (a) Where the appeal relates to any assessment or penalty, the date of service of notice of demand relating to the assessment or penalty. (b) Where appeal is under section 248, i.e., appeal by a person denying liability to deduct tax under section 195, the date of payment of tax. (c) In any other case, the date on which intimation of the order sought to be appealed against is served. 6.2 The Commissioner of Income-tax (Appeals) may admit belated application on sufficient cause being shown. Application for condonation of delay in filing the appeal, giving the reasons for the delay, along with necessary evidences should be filed with Form No. 35 (i.e., form of appeal). The Commissioner of Income-tax (Appeals) can condone the delay in filing the appeal if genuine reason exists for delay. No doubt, the CIT (A) one should be liberal in dealing with the application for condonation of delay. However, one must at the same time keep in mind that condoning of the delay should not result in accrued rights of the other party being defeated by setting the clock back. In Prashant Projects Ltd. Vs. DCIT (2013) 37 taxmann.com 137, the Hon'ble ITAT, Mumbai had culled out the following principles to be kept in mind before condoning delay: “2.4 After considering the above referred judgments, we are of the opinion that delay can be condoned only if there is no gross negligence or deliberate inaction or lack of bona fide. Secondly, assessee should furnish acceptable and cogent reasons sufficient to condone delay. These are the pre-requisites for condoning delay. Besides the above referred basic principle of condonation delay certain other general principles on the subject, culled out from various case laws, can be summarized as under: i. If sufficient cause for excusing delay is shown, discretion is available to the FAAs to condone the delay and admit the appeal. ii. The expression ‘sufficient cause’ is not defined, but it means a cause which is beyond the control of an assessee. For invoking the aid of the section any cause which prevents a person approaching the FAA within time is considered sufficient cause. In doing so, it is the test of reasonable man in normal circumstances which has to be applied. The test whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention. In other words, whether it is bona fide cause, inasmuch as nothing shall be deemed to be done bona fide or in good faith which is not done with due care and attention. What may be sufficient cause in one case may be otherwise in another. What is of essence is whether it was an act of prudent or reasonable man [AshutoshBhaadra v. Jatindra Mohan Seal AIR 1954 Cal.238 and Hisaria Plastic Products v. CST AIR 1980 All. 185. Subsequent decision of a Court cannot constitute sufficient cause. iii. In every case of delay, there is some lapse on the part of the assessee. If there are no mala fides and it is not put forth as part of a dilatory strategy, the FAA should consider the application of the assessee. But when there is reasonable ground to think that the delay was occasioned otherwise than a bona fide conduct, then the FAA should lean against acceptance of the explanation. iv. Section 249(3)of the Act is discretionary in nature and the assessee cannot seek condonation of delay under this provision as a matter of right, but has to Satisfy the FAA by explaining the sufficient cause for the delay. ITA No.696/LKW/2024 Page 4 of 7 v. Just because there is merit in the appeal filed by the assessee, any amount of delay, however, negligently caused, cannot be condoned. vi. Requirement of sufficient cause for delay cannot be ignored and it becomes very important and significant when the delay is inordinate and abnormal. vii. In the matter of J.B. Advani& Co. (P.) Ltd. v. CIT [1969] 72 ITR 395 Hon'ble Supreme Court had held that explanation of delay for the entire period is necessary. In other words what is expected of the appellant in such matters is to show that delay was occasioned due to some sufficient cause. The cause Pleaded should not only be a probable one but it should be real and sufficiently reasonable. It would not be any sort of assertion that would amount to sufficient Cause and would justify the condonation of delay. The cause pleaded must fit in the facts and circumstances of the given case and the explanation offered regarding the delay occasioned by such cause should appeal to reasons so as to get judicial approval. In short in matters of delay it is neither practicable desirable to explain minute-to-minute/hour-to-hour delay, but delay has to explained. viii. When an application for condonation of delay is made; to consider whether sufficient cause has been made out by the assessee; the order of the FAA should disclose that he had applied his mind to the question raised before it Due exercise of judicial discretion is a pre-condition for allowing/refusing an application filed for condoning delay. ix. The application for condonation of delay should contain substantially all the relevant material and as far as possible it should be supported by affidavit, showing that there is sufficient cause for condonation. (x) If the delay is not vitiated by any error of law it should be condoned. xi. Any event, cause or circumstance arising after the expiry of the limitation period (xi cannot constitute a sufficient cause. xii. It is said that non-filing of appeal before the FAA, before the end of limitation period, creates a vested right in favour of the Revenue. As a result of not filing of an appeal by an assessee, Department, gets a legitimate and undisputed right over the tax-revenue accruing to it in pursuance of the order of the AO. This right cannot be disturbed in a light- hearted manner. xiii. In the cases of belated appeals matters have to be essentially analysed in the facts of each case-no general formula can be or should be applied, so as to ensure that an otherwise genuine cause of justice is not defeated by adherence to technical precedence. xiv. Condonation of delay, though an equitable relief, however, cannot be accorded merely on sympathy or compassion and the grounds offered have to be evaluated to test whether the party in default had been guilty of conscious a deliberate inaction, culpable negligence and inexcusable indifference to the period of limitation mandatorily prescribed by law.” 6.3 Against the aforesaid legal backdrop, I find that on 2.1.2018, i.e., at the time of filing the appeal, the appellant, Shri Wakeel Ahamad had stated in column no.15, of form no.35 that he had fallen ill and due to his illness, the appeal got delayed and that they were furnishing the medical certificate confirming his illness and a letter from him certifying the said facts. But no such contemporaneous medical certificate was attached along with form no. 35. Accordingly vide this office letter dated ITA No.696/LKW/2024 Page 5 of 7 07.10.2024, the appellant was requested to file the medical certificate on or before 11.10.2024. In response to this letter, the appellant filed an adjournment request. Vide letter dated 15.10.2024, the appellant was called upon to file the medical certificate to decide about the delay first and then, the request for adjournment could be considered, if necessary. In response to this letter, the appellant, instead of filing any contemporaneous medical certificate, filed a certificate dated 14.10.2024 from one Dr. Imtiaz Anamed, (B.U.M.S.) merely stating that the appellant was suffering from dysentery, typhoid and diarrhea. No contemporaneous evidence, such as any medical investigation and treatment records of that time was made available, despite claiming in form no. 35 that medical certificate was being enclosed. In this view of the matter, a hand written testimonial from a doctor, procured more than 6 years later from the period of sickness, cannot be given any credence to. I am, therefore, not inclined to condone the delay in presentation of this appeal, as no contemporaneous evidence of illness has been pressed in service. This appeal is accordingly dismissed for delay.” 2.2 The present appeal in Income Tax Appellate Tribunal (ITAT) has been filed by the assessee against the aforesaid impugned appellate order dated 18.10.2024 of the Ld. CIT(A). In the course of appellate proceedings in ITAT; hearings fixed on 22.01.2025, 05.02.2025 and 06.02.2025 were adjourned at the request of the assessee’s side. Hearing was fixed again on 10.03.2025, but there was no representation from the assessee’s side. A letter was filed from the assessee’s side, seeking adjournment, on the ground that the Ld. Counsel engaged shall not be able to put in appearance due to some unavoidable personal circumstances. As sufficient opportunity has already been granted to the assessee side, and further, as adjournment has been sought on vague, unspecific and unsubstantiated ground of “unavoidable personal circumstances”; the request for adjournment was declined and the matter was heard on 10.03.2025. In the absence of any representation from the assessee’s side, the Ld. Departmental Representative (“DR”, for short) was heard. He relied on the impugned order of the Ld. CIT(A). 3. The Ld. DR for Revenue has been heard and materials placed on record have been perused. The assessee’s appeal was dismissed by the Ld. CIT(A) on the ground of limitation. The ITA No.696/LKW/2024 Page 6 of 7 appeal was filed by the assessee in the office of the Ld. CIT(A) belatedly, beyond the time limit prescribed under section 249(2) of Income Tax Act. The assessee claimed that the delay was because of the assessee’s illness. However, the assessee failed to provide any contemporaneous medical certificate. Though the assessee filed a certificate dated 14.10.2024, the appeal was filed in the office of Ld. CIT(A) by the assessee belatedly, much before 14.10.2024 i.e. on 02.01.2018. Medical certificate dated 14.10.2024 is not a good explanation for delay that happened years ago, in January, 2018. The discussion of the limitation matter by the Ld. CIT(A), in paragraph no. 6.3 of his impugned appellate order, has been found to be just, proper and reasonable in the specific and facts and circumstances of the present case. Therefore, no interference is called for in the impugned appellate order of the Ld. CIT(A). The decision of the Ld. CIT(A) to refuse condonation of delay is upheld. In the result, the appeal of the assessee is dismissed. Order pronounced in the open court on 13/03/2025 - Sd/- [ANADEE NATH MISSHRA] ACCOUNTANT MEMBER DATED: 13/03/2025 Vijay Pal Singh, (Sr. PS) ITA No.696/LKW/2024 Page 7 of 7 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. DR 5. Guard file By order //True Copy// Assistant Registrar "