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TMI Blog2022 (10) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... mposed by assessing officer and confirmed by Commissioner of Income-tax (Appeals) may please be deleted." 2. On perusal of record, we find that Ld. CIT(A) passed impugned order on 20.08.2015, however, this appeal was filed on 02.05.2018. Thus, there is a delay of 920 days in filing the appeal before Tribunal. The assessee has filed an application for condonation of delay, which is supported by affidavit of assessee. In the application for condonation of delay, the applicant/assessee contended that the order passed by Ld. CIT(A) was received on 26.08.2015. The assessee could not file appeal immediately due to reasons beyond his control. The assessee is handicapped person and also suffering from various ailment like blood pressure and diabetes. Other family members were also suffering from various ailment. His father was suffering heart related issues and wife with inflammatory nasal polyp. The assessee was mentally depressed and disturb and could not take proper step to file appeal in time. The non-filing of appeal in time was neither intentional nor deliberate nor with mala fide intention. The Ld. AR for the assessee submitted similar submissions as pleaded in the application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t each other, the cause of substantial justice deserve to be preferred, the other side cannot claim to have vested right in injustice being done because of non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence or on account of mala fides. The litigant does not stand to benefit by resorting delay, in fact he runs a serious risk. Considering the aforesaid facts and legal position that there was no mala fides on the part of assessee in filing the appeal, rather, the assessee is under serious risk. 6. Further, we find that Hon'ble Gujarat High Court in Dinesh Nagindass Shah Vs CIT (supra), while following the decision in Land Acquisition Vs Mst Katiji (supra), condoned the delay of five years in filing revision also held that held that when the factual aspects in the present case are considered, in the light of the decision of the Apex Court in Collector, Land Acquisition's case (supra), the CIT was required to prefer the cause of substantial justice by taking up the revision petitions on merits. Thus, keeping in view that the assessee has contended that he has good case on merit, therefore, the delay of 920 days in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom proving the penalty proceeding by cogent evidence. Mere rejection of explanation of assessee may be sufficient for making addition in the assessment but not for levying penalty under section 271(1)(c). The addition made by Assessing Officer under section 68 was based on deeming provisions and merely additions were confirmed, penalty cannot be levied. The submission of assessee was not accepted by Ld. CIT(A). The Ld. CIT(A) held that it is a clear case of concealment of particulars of income and assessee has not furnished particulars of income related to the source and transaction. The Ld. CIT(A) thus, converted the charge to 'concealment of income'. Further aggrieved the assessee has present appeal before the Tribunal. 9. We have heard the submission of the Ld. AR of the assessee and the Ld. Sr. DR for the Revenue. The Ld. AR for the assessee submits that Assessing Officer while passing the assessment order basically made two additions (i) on account of cash deposits in ICICI Bank of Rs.19,37,950/- and (ii) addition of Rs.46,010/-. Both the additions were upheld by the Ld. CIT(A). The Ld. CIT(A) while upholding the additions held that the assessee could not prove the source of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irjibhai C Gajera were persons. The said deposits in the bank was contributed by remaining two persons who have confirmed their respective contributions. However, the lower authorities confirmed by taking view that the story of AoP is nothing but cooked up story. The Ld. AR for the assessee submits that mere confirmation of additions or the additions in the assessment will not if so facto given power to Assessing Officer to levy the penalty. The addition was made due to difference of opinion. 12. On the other hand, Ld. Sr-DR for the Revenue submits that it is a clear case of furnishing inaccurate particulars of income thereby the concealing the real income the Assessing Officer as well as Ld. CIT(A) clearly held that a story of AoP is a cooked up story only to make a false statement. No particulars of AoP like PAN or contract was produced by assessee. The various case law relied by Ld. AR for the assessee are distinguishable on the basis of that there is specific fact. The Ld.Sr-DR for the Revenue submits that it is a fit case for confirming the penalty under section 271(1)(c) of the Act. 13. We have considered the rival submission of both the parties and perused the order of low ..... X X X X Extracts X X X X X X X X Extracts X X X X
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