TaxTMI 
TaxTMI 
TaxTMI 
2014 (5) TMI 355
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....is barred by limitation by 157 days. 3. Along with the appeal, the assessee has filed an application for condonation of delay wherein, the assessee had submitted that though the impugned order dated 9th July 2008, passed the learned Commissioner (Appeals)-XXV, Mumbai, was received on 15th July 2008, by the assessee's authorised representative, however, neither the receipt of the said order was communicated to the assessee nor any action was taken by the assessee's authorized counsel. In support of this contention, two affidavits sworn by the then assessee's authorised representative, Mr. Surendra R. Desai, ITP have been filed, stating that the order of the learned Commissioner (Appeals) was served upon him personally and was handed over to his clerk for further action, which was misplaced by him. It was only when the attachment proceedings of the bank account of the assessee was undertaken by the Department, the assessee enquired about the fate of the appeal and, accordingly, it came to the knowledge of the learned counsel as well as the assessee that the order of the learned Commissioner (Appeals) has been misplaced. Later on, the said order was procured and the appeal was filed ....
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....fice clerk the said appeal could not be filed before the Hon'ble ITAT within the stipulated time period. 10. That the delay in filing of appeal is due to the improper attendance on the part of my office. 11. That this affidavit is submitted in confirmation of the facts stated in the application filed before the Hon'ble'ble ITAT for the condonation of delay in filing the appeal. 4. At the time of hearing before the Tribunal on 6th March 2014, the learned Departmental Representative was required to ascertain from the records, as to whether the order of the learned Commissioner (Appeals)-XXV, Mumbai, was served upon the then assessee's authorised representative, Mr. Surendra R. Desai, or to the assessee. In response, the learned Departmental Representative presented the records and also submitted a letter that the order dated 9th July 2008, passed by the learned Commissioner (Appeals) was actually served upon the assessee's authorised representative, Mr. Surendra R. Desai, "by hand". The copy of acknowledgement of receipt of Mr. Surendra R. Desai, has also been filed. From the records produced before us, it is evident that the order of the learned Commissioner (Appeals)-XXV....
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....ssment year. He further noted that the assessee could not file loan confirmation & provide full address and, hence, the financial capacity of these creditors could not be proved. The assessee, explaining the genuineness of the loans, vide letter dated 24th December 2007, has given the explanation that these loans have been taken from family members, relatives and friends from native place Jalore in Rajasthan, who are mostly farmars. The said explanation has been incorporated in Para-7 of the assessment order. However, the Assessing Officer held that the assessee has not been able to establish the identity and the creditworthiness of the contracts and, therefore, the same was added as unexplained cash credit under section 68. He also referred and relied upon various judicial decisions. 7. Before the learned Commissioner (Appeals), the learned Counsel for the assessee, Mr. Surendra R. Desai, had submitted a letter dated 7th July 2008, whereby it was offered that the loan taken can be added to the total income of the assessee so as to buy piece, provided no penalty proceedings should be initiated. The contents of the said letter, as reproduced in Page-4 of the impugned order, read as....
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.... cognizance, because part of the offer which was made i.e., no penalty proceedings should be initiated has not been accepted by the learned Commissioner (Appeals), therefore, without going into other part of the offer given in the said letter also cannot be accepted. Mr. Gurwala, stated that a search and seizure action was conducted on 16th November 2009, under section 132(1) in the case of assessee's husband Mr. Jawahar B. Purohit and, accordingly, action under section 153C was also initiated in case of the assessee. During the course of the said assessment proceedings, with regard to the same addition made under section 68, the assessee has filed all the relevant details and evidence of each and every creditors, like documents relating to their identity, the land revenue records, to show their creditworthiness, family tree, confirmation letters along with the complete address, etc. The same very documents, which are running into more than 300 pages, have also been filed before us in the form of additional evidence. For this purpose, the learned Counsel has filed a separate application under Rule 29 of the Income Tax Appellate Tribunal Rules, 1962, for admission of these additiona....
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....sessing Officer had added the said loans under section 68, on the ground that neither the identity nor the creditworthiness could be established. Before the learned Commissioner (Appeals), without going on to the merit, the then authorised representative, Mr. Surendra R. Desai, submitted a letter dated 8th July 2008, stating that the assessee was unable to produce all the creditors because most of them are illiterate and are of old age and, therefore, cannot come to Mumbai, to produce details and confirm the said loans. Therefore, in order to buy peace, the said loan amount was offered to be added to the total income of the assessee. The second part of the offer was that no penalty proceeding should be initiated. Based on this letter, the learned Commissioner (Appeals) has confirmed the said additions. Apart from this, he also held that the finding of the Assessing Officer in this regard is upheld. Now at this stage the contents of the said letter has been stated to be without any intimation or knowledge of the assessee and, therefore, such an offer made by the then authorised representative has been denied by the assessee before us. In support of this denial, an affidavit of the a....
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.... adjudication of this issue. Therefore, in the interest of substantial justice, we feel that these documents should be considered for deciding the issue afresh on merits. Since these documents have not been examined by any of the departmental authorities, therefore, in the interest of justice, we are of the considered opinion that the matter should be restored back to the file of the Assessing Officer for fresh adjudication. Consequently, we set aside the impugned order passed by the learned Commissioner (Appeals) and restore the entire issue of addition made under section 68, back to the file of the Assessing Officer, to verify these additional evidences and carry out any enquiries as he may deem fit under the facts and circumstances of the case and in accordance with law only after providing due and effective opportunity of hearing to the assessee to present her case. Thus, the ground raised by the assessee is treated as allowed for statistical purposes. 13. In the result, assessee's appeal in ITA no.1081/Mum./2009 is allowed for statistical purposes. We now take up assessee's appeal in ITA no.5514/Mum./2013, for the assessment year 2005-06, vide which, following ground has been....