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TMI Blog2024 (1) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... been made by the AO while passing a best judgment assessment order. We failed to appreciate under which law a debit balance from a Bank account could be added to the income of the assessee. The available balance was not treated as an unexplained balance in the Bank account. It might be flowing from the earlier years, out of that the assessee had made the payments. AO was unable to lay his hands on any of the details that such payments were not in connection with the business of the assessee. He simply considered the total withdrawal from the Bank, vis- -vis the turnover of the assessee and then held that debit balance from the Bank is to be treated as unexplained income of the assessee under section 69C. In our view, it is just an absurd conclusion without any cross verification and without collecting any information. It is further found that the ld. 1st Appellate Authority has also again not appreciated any of these circumstances but dismissed the appeal for want of prosecution. No doubt in a best judgment, element of assumption will always be invoked, but that estimation could not be yield one and it cannot be used as a tool to punish the assessee. AO is supposed to collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld. Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon ble High Court as well as before the Hon ble Supreme Court, then, Hon ble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji Others, 1987 AIR 1353: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislatively fixed period of time. A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to Rs. 6,39,400/- as gross receipt u/s. 44AD of the IT Act 1961 which is not matching with the above debit amount of Rs. 72,66,584/-. A show cause notice was issued to the assessee on 06.09.2018 to explain the source of debit amount but till date the assessee neither submitted any documents requisitioned u/s. 142(1) nor submitted any reply of show cause notice, hence assessment order is being passed u/s. 144 of the IT Act 1961 Thus the above debit amount (expenses) is treated as unexplained expenditure u/s. 69C of the IT Act 1961 and added back to the total income. Penalty u/s 271(1)(c) is initiated on this issue for concealment of income 3. On perusal of bank account details of OBI bearing account No. 0707010103140 it was found that there is a closing balance of cash in hand is Rs. 24,00,490/- but on the perusal of ITR the above mentioned cash in hand was not shown. A show cause notice was issued to the assessee on 06.09.2018 to explain the source of cash in hand but till date the assessee neither submitted any documents requisitioned u/s. 142(1) nor submitted any reply of show cause notice, hence assessment order is being passed u/s. 144 of the IT Act 1961 Thus the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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