TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 409
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....ase as well as law on the subject, the learned Commissioner of the Income Tax (Appeals) has not offered ample opportunities to hear the case and passed ex-parte order, hence the case may please be set aside and restored back to the CIT(A) or AO. 3. It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 4. Appellant craves leave to add, alter or delete any ground(s) either before of in the course of the hearing of the appeal. 3. At the outset, I note that there is a delay in filing the appeal by the assessee for 779 days. The learned AR of the assessee has explained the reasons for the delay by stating that he (the assessee) was not aware of the provisions of income tax being small agriculturist. On being advised by his brother and upon his reference of the CA, the assessee filed the appeal with the delay. Thus, as per the ld. AR the delay occurred in filing the appeal which needs to be condoned. 4. The learned DR at the time of hearing, considering the length of delay opposed on the condonation petition filed by the assessee. 5. I have heard the rival contentions of both the parties and perused the material....
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....tial justice rather than technicality in deciding the issue. 5.2 I further note that the case on merit appears to be in favour of the assessee. But there is a technical defect in the appeal since the appeal was not filed within the period of limitation. There was the application filed by the assessee explaining the reasons for the delay in filing the appeal before me. I note that the Hon'ble Gujarat High Court in the case of S.R. Koshti Vs. CIT reported in 276 ITR 165 has held as under: 18. The position is, therefore, that, regardless of whether the revised return was filed or not, once an assessee is in a position to show that the assessee has been over-assessed under the provisions of the Act, regardless of whether the over-assessment is as a result of assessee's own mistake or otherwise, the CIT has the power to correct such an assessment under section 264(1) of the Act. If the CIT refuses to give relief to the assessee, in such circumstances, he would be acting de hors the powers under the Act and the provisions of the Act and, therefore is duty-bound to give relief to an assessee, where due, in accordance with the provisions of the Act. 19. In the present case, the respon....
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....merits. 5.5 In view of the above and after considering the facts in totality, I am of the view that it is a fit case where the delay in filing the appeal by the assessee deserves to be condoned. Accordingly, I condone the same and proceed to decide the issue on merit. 6. The only issue raised by the assessee is that the learned CIT(A) has erred in confirming the addition made by the AO for Rs. 7,81,648/- representing the closing cash balance as on 31 March 2015 under the provisions of section 68 of the Act. 7. The facts in brief are that the assessee in the present case is an individual and claimed to be an agriculturist. The assessee first time has filed the belated return of income for the year under consideration dated 26/11/2016 declaring an income of Rs.2,66,710/- only. The income tax return was filed by the assessee under the provisions of section 44AD of the Act disclosing the closing cash balance at Rs.7,81,648/- as on 31 March 2015. As per the assessee, the income tax return was filed under section 44AD by the accountant inadvertently. As such, the assessee being an agriculturist was not under the obligation to file the income tax return. The assessee to support his con....
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....e AO on such certificate. 10. However, the ld. CIT-A disregarded the contention of the assessee by observing as under: 4.3 After considering findings of the AO and submissions of the appellant, this ground is adjudicated as under. The AO noted that the appellant had shown Closing Cash balance of Rs.7,81,648/- as on 31.3.2315 in his return of income of A.Y. 2015-16. When asked to substantiate the same and produce Cash Book, the appellant could not do so. Accordingly, the AO added Rs.7,81,648/- u/s 68 r.w.s 115BE of the Act. It is seen that for A.Y. 2015-16, the appellant filed Return of Income u/s 44AD of the Act. However, when asked by the AO to explain the Closing Cash balance and to produce the Cash Book, the appellant turned around and said he has no business and no business income and that he is an agriculturalist and his accountant wrongly snowed agricultural income as income from sale of goods. For the Cash Balance of Rs.7,81,648/- he submitted that he submitted he has accumulated this amount for purchase of land. During appea1 proceedings he reiterated above submissions. The authorised representative of the appellant explained that the appellant was advised by someone....
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....quired to maintain the regular books of account and is also exempt from getting the books of account audited. The provisions of section 44AD are applicable to such resident assessee who is an Individual, Hindu Undivided Family and Partnership Firm but not Limited Liability Partnership Firm. The presumptive taxation scheme under these provisions can be opted for by the eligible assessee who is engaged in any business (except the business of plying, hiring or leasing goods carriages referred to in section 44AE), whose turnover or gross receipts from such business do not exceed the limit of audit prescribed under section 44AB of the Act. 14.2 There is no evidence available on record to indicate that the case of the assessee is covered under the provisions of section 44AD of the Act except the income tax return i.e. the income was disclosed under the provisions of section 44AD of the Act. However, the assessee during the assessment proceedings has countered that he is not covered under the provisions of section 44AD of the Act by furnishing the landholding and Talalti certificates as discussed above. However the AO, without disposing of the objections raised by the assessee has assume....