2025 (12) TMI 148

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....erefore, the order of the Ld. CIT(Appeals)/NFAC which was sent to the assessee on email absolutely had gone unnoticed and resultantly, such impugned delay has been caused. That when option has been provided itself by the department to the assessee in Form 35, in such case, once the assessee has opted as "No" regarding receiving of any notices/communications from the department through email, therefore, the assessee cannot be held at any fault for the delay caused. Accordingly, the said delay of 42 days is condoned. I take guidance from the judicial pronouncements in the cases of viz. (i) Vidya Shankar Jaiswal Vs. ITO, Ward-2, Ambikapur, Civil Appeal Nos................./2025 [Special Leave Petition (Civil) Nos. 26310-26311/2024, dated 31.01.2025; (ii) Jagdish Prasad Singhania Vs. Additional Commissioner of Income Tax (TDS), Raipur (C.G.), TAX Case No.17/2025, dated 24.02.2025, and (iii) Inder Singh Vs. the State of Madhya Pradesh, Civil Appeal No............/2025, Special Leave Petition (Civil) No. 6145 of 2024, dated 21st March, 2025. 4. Coming to the merits of the matter, the brief facts in this case are that the assessee is an employee of M/s. Shree Hari Transport Corporation....

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.... in earlier years and from employer and compensation through court order. In this regard, the assessee has also submitted capital account of himself and his mother. The Ld. CIT(Appeals)/NFAC had failed to conduct any enquiry as mandated in Section 250(4) & (6) of the Act and had summarily dismissed the appeal of the assesse. Further, the Ld. CIT(Appeals)/NFAC has not verified regarding the claim of the assessee as regards the nature and source of such cash deposits. The Ld. CIT(Appeals)/NFAC has not given any finding as to the capital account that has been submitted by the assessee regarding himself and his mother as on 2006-2016. That instead of making any verification on facts, the Ld. CIT(Appeals)/NFAC has chosen to summarily dismiss the appeal of the assessee without any findings on facts. The revenue has not brought on record suggesting any other source of income of the assessee other than the source of declared income in his return of income. This fact has not been disputed. That at the same time, the assessee is earning salary income and commission income. This source of income has also been accepted by the department. The assessee had submitted the capital account and had e....

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....a Jain (supra). I have no hesitation to hold that the addition made by the AO by mentioning incorrect and irrelevant charging section is not sustainable and valid being bad in law. Accordingly, grounds of assessee are allowed and AO is directed to delete the entire addition. 15. In the result, appeal of the assessee is allowed." 8. Similarly, in the decision of Hon'ble High Court of Allahabad in the case of Smt. Sarika Jain Vs. The Commissioner of Income Tax, Bareilly and Another, reported in (2018) 407 ITR 254 (All) which decision was referred to and applied in the earlier decision of the Coordinate Bench of Delhi (supra), the Hon'ble High Court of Allahabad held as follows: "In the present case, it is apparent that the subject matter of the dispute all through before the Tribunal in appeal was only with regard to the addition of alleged amount of the gift received by the appellant-assessee as his personal income under Section 68 of the Act and not whether such an addition can be made under Section 69-A of the Act. In view of the above, it can safely be said that the Tribunal travelled beyond the scope of the appeal in making the addition of the said ....

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....ation of provision of law to the facts and circumstances of the case regarding a particular assessee tantamount to non-application of mind by the assessing officer. This itself vitiates and makes the addition void ab initio, since there is no application of mind, much less than any satisfaction arrived at by the AO. In a recent decision of the Co-ordinate Bench of Delhi in the case of Sanjeev Kumar c/o M/s Raj Kumar & Associates vs. ITO Ward 2(3)(2), Bulandshahr, reported in 2023(10) TMI 1027-ITAT Delhi on the same issue of applying wrong provision of the Act, it was observed and held as follows: "14. In view of foregoing discussion, I reach to a logical conclusion that the complete cash book statement clearly explains the source of cash deposit to the bank account of assessee, wherein the assessee has not only included cash receipts as salary and capital withdrawal from two partnership firms M/s Umang Beverages and M/s Mohan Oil & Cattle Feed and a cash salary from Bihar Milk Foods Pvt. Ltd. and has also reduced the amount of drawings for household expenses. The copy of return of income of wife of assessee Smt. Shalini and father of assessee Shri Kalu Mal co-jointly estab....