TaxTMI 
TaxTMI 
2026 (4) TMI 627
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....] 51 taxmann.com 199 (P&H), without appreciating that the facts of the present case are distinguishable and that the appeal deserves to be heard on merits. 3. The learned Appellate Authority has erred in law by rejecting the appeal after having admitted the same, issued notices, heard the matter, and thereby rendering the entire appellate process infructuous solely on procedural grounds. This is contrary to the Hon'ble Supreme Court's broader guidance on procedural justice and the principles of natural justice. 4. On the facts and in the circumstances of the case, the learned Appellate Authority has erred in holding that the amount of cash deposited by the appellant is unexplained cash under section 69A of the Income-tax Act, 1961, even though the appellant had duly explained that the cash was withdrawn from her savings bank account in the months of September, October, and November 2016 for the purpose of construction of a house, which got delayed, and that the same was re-deposited. 5. The learned Appellate Authority has erred in the computation of tax liability as specified on page 2 of the computation statement. The gross tax liability should h....
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....e Copy of the Challan enclosed for your reference as Annexure-2. 3. Appeal fee not filed as others in details of payment which is not treated as appeal fees Response for the same submitted in Point No.2 Kindly acknowledge the receipt of the same and oblige. Thanking you, Yours Faithfully, sd/- Ananthaiah Roopa Appellant Enclosed as above 4. On going through the above application for condonation, we find that the assessee could not file the appeal within the prescribed period for the reason that the assessee was suffering from arthritis-related issues and was under medical treatment. The assessee has also produced the medical certificate from the Government Medical Officer in support of her claim. The ld. A.R. also submitted that the delay was unintentional and no benefit can be attributed to the assessee in filing the appeal belatedly. He thus prayed to condone the delay and requested to consider the issues raised by the assessee on merits. 5. On the contrary the ld. D.R. vehemently objected for granting the condonation of delay in filing the appeal and submitted that the assessee did not appear ....
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....des. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. (6) It must be grasped that the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 6.2 When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right for injustice being done because of nondeliberate delay. Therefore, we have to prefer substantial justice rather than technicality in deciding the issue. As observed by Apex Court, if the application of the assessee for condoning the delay is rejected, it would amount to legalize injustice on technical ground when the Tribunal is capable of removing injustice and to do justice. Therefore, this Tribunal is bound to remove the injustice by condoning the delay on technicalities. If the delay is not condoned, it would amount to legalizing an illegal order which would result in unjust enrichment on the part of the State by retaining the tax relatable thereto. Under the scheme of Constit....
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....o issued to the South Indian Bank, Carmelaram, Bengaluru for a period under consideration and latest KYC detail. The account statement furnished by the bank were analyzed for the period 01/04/2016 to 31/03/2017 and found that there were cash deposits during 09/11/2016 to 31/12/2016 Amounting to Rs. 13,66,000/-. The AO thereafter issued show cause notice to explain the source of cash deposits into her bank account however, there was no response from the assessee and accordingly the AO construed that the assessee had nothing more to offer. In view of the above facts, the AO constrained to pass best judgement assessment u/s. 144 of the Act based on the material collected and accordingly added the entire cash deposits during the period, commencing from 09/11/2016 to 31/12/2016 as unexplained money u/s. 69A of the Act. The AO concluded the assessment proceedings u/s. 144 of the Act on a total assessed income of Rs. 13,66,000/-. 8. Aggrieved by the order of the AO passed u/s. 144 of the Act on 25/09/2019, the assessee preferred an appeal before the CIT(A)/NFAC. 9. The ld. CIT(A)/NFAC dismissed the appeal of the assessee by observing that the appeal was filed with a delay of 439 day....
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....ll fledged and could not spend the withdrawn cash. In the meanwhile demonetization taken place on 08th of November 2016 and hence the assessee had no option but to deposit the entire cash withdrawn earlier for construction into South Indian Bank amounting to Rs. 13,66,000/- and accordingly prayed that the appeal may be appeal of the assessee may be allowed in the interest of justice & fairplay. 12. The ld. DR on the other hand supported the order of the authorities below and vehemently submitted that once the assessee had opted for the revision proceedings u/s. 264 of the Act, by applying the doctoring of merger, the assessee is precluded from approaching the appellate authority u/s. 246/246A of the Act against the assessment order. The ld. DR submitted that once the revisional power vested with the CIT u/s. 264 of the Act is invoked and the CIT passes the order by exercising his jurisdiction under that section, the order of assessment merges with that the order of revision. Further, the order passed by the CIT u/s. 264 is also not an appealable order u/s. 246/246A of the Act and accordingly prayed to dismiss the appeal of the assessee. 13. We have heard the rival submission ....
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....king appellate jurisdiction, if she has invoked revisionary jurisdiction, even though for invoking revisionary jurisdiction it is a precondition that the appellate jurisdiction should not have been invoked. Thus, there is nothing in the Act that prevents an assessee to move appellate jurisdiction under section 246A of the Act if the effort made under section 264 of the Act is proved unsuccessful. The ld. CIT(A)/NFAC would be justified in entertaining an appeal against the assessment by condoning the delay even though the ld. PCIT had passed an order u/s 264 of the Act against the assessee. The provisions of the Act provides more than one remedy to the assessee and the assessee can certainly invoke all of them. 13.2 The ld.CIT(A)/NFAC heavily relied on the decision of Hon'ble Punjab and Haryana High Court in the case of Jaskaran Singh vs. Union of India (2014) 51 taxaman.com 199 and held that once the assessee had taken recourse to revisional remedy u/s. 264 of the Act and after the rejection of the petition, it was not opened to have fallen back on statutory remedy of appeal under the Act. We are of the considered opinion that under similar facts & circumstances, the Hon'ble Hig....
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....264 of the Income-tax Act, 1961 ('the Act') against the assessee and holding that the provisions of section 154 of the Act were applicable and a revision was not barred by limitation', in favour of the assessee and against the revenue. No costs." 13.3 It is trite law that if two views are possible, the one favorable to the assessee in the matter of taxation to be preferred. Thus, respectfully following the decision of the Hon'ble High Court of Madras, we are inclined to hold that there is no limitation on the exercise of the appellate power in the statute on the ground that the assessee had invoked the revisional power unsuccessfully. The provisions dealing with the appellate authorities do not bar an appellant from invoking the jurisdiction, if he had invoked revisional jurisdiction, even though for invoking revisional jurisdiction, it is a pre-condition that the appellate jurisdiction should not have been invoked. 13.4 Now coming to merits of the case, the assessee by way of written submission vehemently submitted that the assessee being a female with no legal or tax expertise earns her livelihood through small scale tailoring business, the income from which is below the ta....