2022 (5) TMI 227

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....7,186/- under section 68 of the Income Tax Act, 1961. 2. Learned CIT(A) erred in not consider assessee's submission and various documents filed before A.O. & CIT(A). 3. Learned CIT(A) erred in deciding the matter after 20 years of set aside the order by ITAT." (Emphasis supplied) 4. Now its turn to state the facts of the case succinctly as; 4.1 The assessee is a private trust with four identified individual (minor) as beneficiary with a determined (equal) share of 25% each, has for the AY 1984-1985 filed its return of income [for short "ROI/ITR"] on 18/11/1984 u/s 139 of the Act declaring a taxable income of Rs.NIL after apportionment of total income of Rs.1,50,310/- amongst the four identified beneficiaries equally. The return of income was subjected to scrutiny by issue of notice u/s 143(2) of the Act, and certain addition were carried out dislodging the claims of various expenses amounting to Rs.1,11,666/- and further an addition u/s 68 of the Act for failure to establish threefold attributes of unsecured loan for Rs.2,27,186/- was culminated by an order of assessment u/s 143(3) dt. 27/03/1987, thereby assessed the total taxable income of Rs.NIL after a revised apportionm....

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....89,360/- and after apportionment between four beneficiaries equally in the ratio of ¼ (25%) taxable income of the Trust was determined at Rs.NIL, by an order dt. 27/03/1987 u/s 143(3) of the Act. 6.3 The impugned assessment order on a previous occasion was assailed before the first appellate authority [for short "FAA"], however on account of non-appearance, the Ld. CIT(A) dismissed the appeal without touching the merits of the case by an order number 17/87/88 dt. 02/04/1993, consequently matter in the first round of appeal travelled before the Income Tax Appellate Tribunal [for short "Tribunal"]. Considering the facts and circumstance of the case, the tribunal set aside the order and restored the matter back to the file of Ld. CIT(A) for deciding the matter on merits a fresh after providing reasonable opportunity to the assessee. 6.4 In the second round of appeal before the Ld. CIT(A), the assessee through representative attended and made written submissions recapping the like submissions made during the course of original assessment proceedings before the Ld. AO. The assessee during the course of proceedings, furnished an additional evidence u/r 46A of the Income Tax Ru....

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....in which such appeal is filed with a rider that "where it is possible", albeit such is a directive in nature, however if legal redress or equitable relief to an aggrieved party is available, but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all, it is as if "Justice delayed is Justice denied", and the justice being one of civilisation's foundational goals, it is therefore imperative for the quasi-judiciary authority like Ld. CIT(A) to perform its duty in a manner to enable the aggrieved to continue its pursuit of peace, harmony and progress, which in this case has miserably failed. 8. In re, the appellant in the second round of appellate proceedings, has filed the present appeal before the Tribunal on 23/01/2017 and on being first listed on 10/02/2022 was adjourned for non-appearance, in the light of aforestated facts & circumstance and heedful to the substantial delay in justice, we proceeded to adjudicate the matter on no objection from the departmental representative [for short "DR"]. 9. Since the matter exclusively calls for adjudication on the applicability of section 68, it is apt to quote the lex lata as it stood at the relevant ....

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....o assessment year under adjudication and does not apply to opening balances. Thus, credit in the accounts during the previous year is condicio sine qua non for the application of section 68 and said view has been consistently taken in plethora of judicial precedents; some of such could be quoted here as; "CIT Vs Usha Stud Agricultural Farms Ltd" reported at 301 ITR 384 (Del), "DCIT Vs Amod Petrochem (P) Ltd" 23 ITCL 145 (Guj), "Bhogilal Virchand Vs CIT" reported in 127 ITR 591 (Bom), consequently, the addition culminated u/s 68, can discretely find merits in deletion. 9.5 On the other hand, blowing hot and cold together, the Ld. DR, contended that, since the appellant Trust is not prosecuting the appeal, as it might have consented or accepted the addition of unexplained cash credit as income u/s 68 of the Act. In our opinion, this argument of Ld. DR cannot be upheld, in the light of judgment of Hon'ble High Court of Madras in the case of "Mariam Aysha Vs CIT" reported in 104 ITR 381 (Mad) wherein the Hon'ble Lordship have held that; "That, consent/acceptance given by assessee cannot give jurisdiction and a right to the assessing authority to make an addition, is an essential pr....