2020 (5) TMI 396 - AT - Income Tax

Condonation of delay - delay of 358 days - assessee could not appear before the AO and ''Ld.CIT (A)'' due to shifting his employment as contended in the condonation petition - HELD THAT - Admittedly, the onus lies on the assessee to file the appeal within the time. But the provision of section 253(5) authorizes us to condone the delay if the appeal was not presented by the assessee within the time due to some unavoidable reason. In the present case we find that the assessee could not file the appeal due to change in the place of employment i.e. from Ahmedabad to Pune. Revenue has not brought anything on record contrary to the contention of the assessee justifying the delay in filing the appeal. We presume content of the application filed by the assessee is correct despite of the fact that the condonation petition was not supported with the corroborative evidences for shifting employment from Ahmedabad to Pune - in the interest of justice and fair play we impose the cost upon the assessee for ₹ 5000/- for not presenting the appeal within the prescribed time. Accordingly, the assessee is directed to deposit cost of ₹ 5000/- in the Income Tax Office. We condone the delay in filing the appeal by the assessee as discussed above and proceed to decide the issue on merit. Assessee has not appeared before the authorities below. Hence, the additions were made by the AO which were subsequently confirmed by the ''Ld.CIT (A)'' without hearing the assessee - impugned addition has been made and sustained without considering the relevant evidences which might result recovery of the taxes on the additions which are not sustainable in the eyes of Law. Indeed, the primary onus lies on the assessee to co-operate in the proceedings before the authorities below. In case he does not do so he deserve to be penalized. Again we feel that the penalty to be imposed upon the assessee should be commensurate to the default committed by him. As such we are of the view that the assessee should not suffer for his nonappearance for the addition of the income which is not sustainable under the Act. Undoubtedly, the additions have been made and sustained by the respective authorities merely on the reasoning that the assessee failed to provide the supporting evidences which might result in the recovery of the tax with respect to the additions which are not liable to tax - we are inclined to set aside the order of the ''Ld.CIT (A)'' for fresh adjudication as per the provision of Law to the file of the AO. However, we are of the view that the assessee deserve to be penalized for non-appearance before the authorities below. Accordingly we impose penalty of ₹ 5000/- upon the assessee to deposit the same in the Income Tax Officer before the commencement of his proceedings before the AO. - Appeal filed by the assessee is allowed for statistical purposes.

Issues Involved:
1. Condonation of delay in filing the appeal
2. Imposition of cost for delay in filing the appeal
3. Non-appearance of the assessee before authorities
4. Addition of income without considering relevant evidence
5. Setting aside the order for fresh adjudication
6. Imposition of penalty on the assessee for non-appearance

Condonation of Delay in Filing the Appeal:
The appeal filed by the assessee was late by 358 days, with the assessee attributing the delay to shifting employment from Ahmedabad to Pune. The Tribunal noted that the onus lies on the assessee to file the appeal within the prescribed time but can condone the delay due to unavoidable reasons. Despite lack of corroborative evidence for the employment shift, the Tribunal accepted the assessee's explanation and imposed a cost of ?5000 for the delay, directing the assessee to deposit the amount in the Income Tax Office.

Non-Appearance of the Assessee Before Authorities:
The assessee did not appear before the authorities below, leading to additions made by the Assessing Officer and confirmed by the CIT(A) without hearing the assessee. The Tribunal observed that the additions were made without considering relevant evidence, potentially resulting in taxes on unsustainable additions. While emphasizing the importance of the assessee's cooperation, the Tribunal decided not to penalize the assessee for non-appearance regarding additions that were not sustainable under the Act.

Setting Aside the Order for Fresh Adjudication:
Considering the lack of supporting evidence for the additions and the need for fair play, the Tribunal set aside the CIT(A)'s order for fresh adjudication by the Assessing Officer. While imposing a penalty of ?5000 on the assessee for non-appearance, the Tribunal directed the assessee to cooperate with the AO and provide all necessary documents in advance.

In conclusion, the Tribunal allowed the appeal filed by the assessee for statistical purposes, setting aside the CIT(A)'s order and directing fresh adjudication by the Assessing Officer. The judgment aimed to balance the imposition of penalties with the principles of justice and fair play, emphasizing the importance of cooperation and evidence in income tax proceedings.

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