9911796707
TMI Blog2024 (1) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... to. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay has to be condoned. Whether delay was excessive or inordinate? - There is no question of any excessive or inordinate when the reason stated by the assessees was a reasonable cause for not filing the appeals. We have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. Madras High Court in the case of CIT vs. K.S.P. Shanmugavel Nadai and Ors. [ 1984 (4) TMI 24 - MADRAS HIGH COURT] considered the condonation of delay and held that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation. Accordingly, the Madras High Court condoned nearly 21 years of delay in filing the appeal. The Mumbai Bench of this Tribunal in the case of Bajaj Hindusthan Ltd [ 2004 (5) TM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case is bad in law on facts of the case as well on the statutory provisions of the Income Tax Act. Further, the impugned order passed by the learned CIT (A) confirming the additions made by the assessing officer is in violation of the principals of natural justice. 2. The learned CIT (A) has erred both in law and on the facts in confirming the action of the Ld. AO by making high pitch addition of Rs. 27,87,500/- on account of cash deposit made during the demonetization period (08-11- 2016 to 30-12-2016) and thereby raised demand of Rs. 29,14,015/-without considering the submission made by the Appellant and rejecting the explanation and requisite documents already submitted during the course of assessment proceedings. 3. The learned CIT(A) has erred both in law and on the facts in confirming the addition of Rs. 27,87,500/- u/s.69A r.w.s.115 BBE of the Act, on account of alleged Unexplained Money Ignoring the profession of the Appellant and/or without appreciating the fact that the same is the part of gross receipts from his profession and the net income on such receipts have already been offered to tax as income in the ROI filed for the preceding previous years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of account and are reportedly made on the receipt from a creditor. Further, the PAN and address of the creditor as well as ledger account copies of the creditor in the assessee's books of account have also been filed before the Assessing Officer. In these circumstances, it is evident that the Assessing Officer has not made out a case calling for an addition under section 69A of the Act. Probably, an addition under section 68 of the Act could have considered: but then (hat is not the case of Assessing Officer. The assessee, apart from raising several other grounds, has challenged She legality of the addition being made under section 69A of the Act. In support of the assessee's contentions, the AK placed reliance on the decision on the decision of the ITAT- Mumbai Bench in the case of Dy. CIT v. Karthik Construction Co. In ITA No.22292/Mum/2016, dated 23-2-2018 [2018 Taxpub (DT) 1507 (Mum-Trib)], wherein 'the 'Bench at para 6 thereof has held that addition under section 69A of the Act cannot be made in respect of those assets I monies /'entries which are recorded in the assessee's hooks of account. As regards ITA Nos. 1383 and 1384/'Bang/'201'9, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em in order to follow up with the income tax notices, which are posted in IT portal. The assessee is not aware about any faceless scheme of assessment followed by the department. The assessee has not seen the NFAC s order in its portal and the same has been came to knowledge of assessee when it received a message about penalty notice issued u/s 270A 270AAC of the Act directing him to file reply in response to the notice issued. Consequent to this, assessee consulted his advocate and taken steps to file the appeal before this Tribunal. Thus, it caused 424 days delay in filing the appeal before this Tribunal and prayed to condone the delay. 3. The ld. D.R. strongly opposed the admission of appeal and submitted that assessee is habitual in filing appeal belatedly as the appeal before NFAC also filed belatedly. Hence, no liberal view to be taken on this case and appeals shall not be admitted for adjudication. 4. We have heard the rival submissions and carefully perused the record. While considering a delay in filing the appeal, the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. (167 ITR 471) laid down six principles. For the purpose of conveni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State by retaining the tax relatable thereto. Under the scheme of Constitution, the Government cannot retain even a single pie of the individual citizen as tax, when it is not authorised by an authority of law. Therefore, if we refuse to condone the delay, that would amount to legalise an illegal and unconstitutional order passed by the lower authority. Therefore, in our opinion, by preferring the substantial justice, the delay has to be condoned. 4.2. The next question may arise whether delay was excessive or inordinate. There is no question of any excessive or inordinate when the reason stated by the assessees was a reasonable cause for not filing the appeals. We have to see the cause for the delay. When there was a reasonable cause, the period of delay may not be relevant factor. In fact, the Madras High Court in the case of CIT vs. K.S.P. Shanmugavel Nadai and Ors. (153 ITR 596) considered the condonation of delay and held that there was sufficient and reasonable cause on the part of the assessee for not filing the appeal within the period of limitation. Accordingly, the Madras High Court condoned nearly 21 years of delay in filing the appeal. When compared to 21 years, 71 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the applications of the assessees, therefore, as held by the Apex Court, there is sufficient cause for condonation of delay. The Supreme Court observed that when the delay was of short duration, a liberal view should be taken. It does not mean that when the delay was for longer period, the delay should not be condoned even though there was sufficient cause. The Apex Court did not say that longer period of delay should not be condoned. Condonation of delay is the discretion of the Court/Tribunal. Therefore, it would depend upon the facts of each case. In our opinion, when there is sufficient cause for not filing the appeals within the period of limitation, the delay has to be condoned irrespective of the duration/period. In this case, the non-filing of an affidavit by the Revenue for opposing the condonation of delay itself is sufficient for condoning the delay in filing the appeals before the Tribunal. 4.5. In the judgment rendered by the Supreme Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafa Academy others (Civil Appeal Nos. 8183 - 8184 of 2013), the Supreme Court has referred to some of the decisions rendered by Hon'ble Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 SCR 762); Shakuntala Devi Jain v. Kuntal Kumari(1969)(l SCR 1006); Concord of India Insurance Co. Ltd. V. Nirmala Devi(1979)(3 SCR 694); Lala Mata Din v. A. Narayanan(1970)(2 SCR 90); Collector, Land Acquisition v. Katiji etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fide on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required $o be condoned in the the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. .... (c) In this context, we may refer with profit to the authority in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another (2010)(5 SCC . 459), where a two-Judge Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in filing this appeal before us and admit the appeal for adjudication. 4.7 After condoning the delay, the issue on merit of the additions is covered by the judgement of coordinate bench in the case of Bhoopalam Marketing Services Ltd. in ITA No.375/Bang/2022 dated 15.9.2022, wherein held as under: 7. We have carefully considered the rival contention and perused the orders of the lower authorities. Admittedly the assessee has deposited Rs. 298,08,080/- during the post demonetization between 09/11/2016 and 30/12/2016. Therefore, Ld.AO made addition of INR 5,82,76,300/- as income of the assessee u/s. 68 of the income tax act, by passing assessment order u/s. 144 of the Act. The Ld.AO made such addition as the assessee could not file requisite details as the notice was issued to the email address that was not functional. In the interest of justice, we deem it proper to remand the issues back to the Ld.AO for a de novo verification. 7.1 We have carefully gone through the various standard operating procedures laid down by the central board of direct taxes issued from time to time in case of operation clean. The 1st of such instruction was issued on 21/02/2017 by ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
