2024 (12) TMI 428

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....d without applying judicial mind. The addition made is thus illegal and bad in the eyes of law. Further the assessing officer also erred by invoking provision under section 115BBE is thus not only un reasonable but very excessive and without sufficient material not on the record. 2. That the assessing officer further erred on facts and in law in initiating proceedings for the levy of penalty under section 271AAC. 3. That the appellant craves, leave to modify / amend or add any one or more grounds." 3. At the outset, it is observed that this appeal is filed belatedly by assessee by 438 days beyond the time prescribed u/s 253(3). The appellate order passed by ld. CIT(A) is dated 25.07.2022 which is stated by the assessee in Form No. 36 to have been received on 29.07.2022, while this appeal is filed by assessee with the Tribunal on 05.12.2023. The assessee has filed application for condonation of delay, which is reproduced as under : "Application for Condonation of Delay Dated 05/12/23 The Ld. ITAT. Agra Sub: Regarding condonation of delay of filing appeal in the case of Shuchi Varshney 8-9, Bhagwati Market, Chhipeti, Aligarh. ....

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....s no serious objection in condoning the delay in filing this appeal. 4. I have considered rival contentions and perused the material on record. I have observed that this appeal is filed by the assessee with ITAT belatedly by 438 days beyond the time prescribed u/s. 253(3) of the Act. The assessee had duly deposited the appeal fee on 03.09.2022 within the period of limitation, however, the appeal is filed belatedly on 05.12.2023 and the main reason stated for this delay is the chronic illness of the assessee's counsel, Shri Abhishek Gupta, Advocate. Medical certificates are filed on record. Department has no serious objection to the condonation of delay. I observe that this delay of 438 days in filing this appeal belatedly by the assessee needs to be condoned. If substantial justice and technicalities are pitted against each other, Courts will lean towards advancement of substantial justice, unless malafide is at writ large on the part of litigant. I do not find any mala fide on the part of the assessee in filing this appeal belatedly by 438 days with the Income-tax Appellate Tribunal. The assessee has shown reasonable and sufficient cause in filing this appeal belatedly. In-fact....

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....g Officer observed that Wealth Tax Act was already abolished from financial year 2015-16, and the details of the assets are now required to be filed in the Income-tax Return for the assessment year. As per e-filing portal assessee has filed ITR's from assessment year 2014-15, 2015-16 and 2016-17, wherein the assessee has declared following income : Assessment year Total Income Cash balance declared in ITR Head of Income 2014-15 2,16,750/- NIL Business income 2015-16 2,97,190/- NIL Business income 2016-17 2,97,700/- 28,000/- Business Income 5.2 Assessing Officer observed that the account of the assessee was opened on 26.04.2016,and there was credit of Rs. 6,10,116/-. Assessing Officer after considering the contentions of the assessee observed that considering marriage gifts received in cash and considering assessee's earlier earnings as per ITRs and cash balance declared in AY 2016-17, the AO granted relief of Rs. 1,00,000/- as maximum savings in specified bank notes of Rs. 1000 and Rs. 500. The AO made additions to the tune of balance amount of Rs. 19,44,000/- deposited by the assessee in demonetized currency of Rs. 1000/- and Rs. ....

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....etc. Thus, it was prayed that the matter can be set aside back to the file of ld. CIT(Appeals) for denovo adjudication. 7.2 Ld. Sr. DR fairly submitted that the department has no objection if the matter can be restored back to the file of ld. CIT(Appeals) for deciding the issues afresh arising in appeal on merits by ld. CIT(A). 8. I have considered rival contentions and perused the material on record. I observe that the ld. CIT(Appeals) has simply dismissed the appeal of the assessee ex parte in limine without deciding the issues arising in appeal on merits. The ld. CIT(A) has upheld the assessment order by holding that he does not want to interfere with the assessment order. There is no independent application of mind by ld. CIT(A) and the appellate order passed is not a speaking and reasoned order. Both the parties before the Bench agreed that the matter can be restored back to the file of ld. CIT(Appeals) for deciding the appeal on merits afresh on merits in accordance with law.The ld. CIT(A) has not even dealt with the contentions of the assessee that cash deposited in the bank account of Rs. 20,44,000/- in SBN during demonetized period were from earnings, gifts during ma....