Case Law Details
Zakir Ibrahim Jamadar Vs ITO (ITAT Ahmedabad)
Considering the fact that the assessee is an agriculturist and never filed Return of Income as there is no income assessable to income tax and as pleaded by the assessee, that the cash deposits in HDFC bank and State Bank of India are nothing but the compensation received from State Government on the compulsory acquisition on agricultural land cannot be brushed aside. At the same time the Revenue cannot make the additions under Section 69A for the reason that assessee has not cooperated with the department. To meet the ends of justice we deem it fit to condone the delay of 10 days in filing the appeal before the Ld. CIT(A) and, thus, we condone the same. Further we set-aside the order passed by the Ld. CIT(A) and remand the matter back to the Ld. CIT(A) with a direction to pass fresh order upon giving adequate opportunity to the assessee to explain its case and pass orders in accordance with law.
FULL TEXT OF THE ORDER OF ITAT AHMEDABAD
This is an appeal filed by the assessee against the order dated 11.05.2021 passed by the Commissioner of Income Tax (Appeals) (in short “CIT(A)”) of National Faceless Appeal Center, Delhi relating to the Assessment Year 2012-13.
2. The Registry is noted that there is a delay of 220 days in filing this appeal before the Tribunal. The Hon’ble Supreme Court in suo motu Writ Petition (C) No. 3 of 2020 and in M.A. No. 29 of 2022 dated 10.01.2022 extend by the period of limitation from 15.03.2020 till 28.02.2022. This appeal is filed on 15.02.2022. Thus, there is no delay in filing the appeal before the Tribunal.
3. The solitary issue raised by the assessee before us is the Commissioner of Income Tax (Appeals) failed to condone a delay of 10 days in filing the appeal before the Ld. CIT(A).
4. The brief facts leading to the case is the assessee is an individual of carrying out agricultural activities. The assessee has never filed return of income as there is no taxable income. For the A.Y. 2012-13 a notice under Section 148 of the Income Tax Act, 1961 (for short ‘the Act’) was issued, for the reasoning that the assessee has made cash deposits of Rs. 13,96,422/- in HDFC bank, Karjan and a sum of Rs. 57,12,019/- in State Bank of India, Karjan those totaling Rs. 71,08,441/-. As the assessee has not filed any Return of Income, and why not the above cash deposits being treated as unexplained income for the A.Y. 201213. The assessee neither filed any reply to the assessee nor any Return in spite of 142(1) notice had been issued to the assessee. Therefore, the AO completed the assessment under Section 144 of the Act, determining the income of the assessee as Rs.71,08,441/- and demanded tax thereon.
5. Aggrieved against the same, the assessee filed an appeal before the Commissioner of Income Tax (Appeal), National Faceless Appeal Centre (in short ‘NFAC’). In the appeal the assessee claimed that he is an agriculturist, he has only received the assessment order passed under Section 144 of the Act on 09.12.2019. The assessee have not received any notice under the Act, as in last year, as he was out of India to stay with his daughter. Further the AO wrongly considered compensation received for compulsory acquisition of agricultural land as unexplained income under Section 69A of the Act. The AO wrongly added the compensation amount received from the Government as income of the assessee, which is otherwise exempt under the Income Tax Act. Though the appeal was filed by the assessee on 09.12.2019 there is a delay of 10 days in filing such an appeal, which the Ld. CIT(A) held that the same is not condonable, as sufficient cause was not adduced by the assessee. Thereby, the Ld. CIT(A) dismissed the appeal filed by the assessee.
6. Aggrieved against the same the assessee is before us, raising the following grounds of appeal:
“1. The Ld. Commissioner of Income Tax (Appeals), (NFAC), Delhi, has erred in law and in facts in dismissing the appeal on account of short delay of 10 days in filing the appeal invoking the provisions of Section 249(2) and holding that there is no sufficient cause for condoning the delay. The Ld. CIT(A) ought to have condoned the delay considering the same was of a short period and adjudicated the appeal on merits.
2. The ld. CIT(A), NFAC, Delhi, has further erred in law and in facts in dismissing the appeal without considering the merits and the submissions uploaded on 22.02.2021 on the income tax portal, very much before the date of passing the order on 11.05.2021. The impugned order being in violation of principles of natural justice may please be set aside.
3. The Ld. CIT(A), NFAC, Delhi further erred in law and in facts in confirming the addition of Rs. 71,08,441/- as explained investment representing the deposits in the bank account. The addition of Rs. 71,08,441/- being contrary to law and facts is thus prayed to be deleted.
4. Your appellant craves liberty to add, alter, delete or substitute any of the grounds of appeal herein above contained.”
7. The Ld. Counsel appearing for the assessee pleaded that there is a delay of only 10 days in filing the appeal before the Ld. CIT(A). The assessee being an agriculturist and no other income chargeable to tax is not aware of the income tax proceedings and assessee was also not required to file any return of income. The agricultural land compulsorily acquired by the Government, and paid compensation, the same has been deposited by the assessee in HDFC bank and State Bank of India. The same cannot be treated as unexplained income of the assessee. Without verifying the details the Ld. CIT(A) erred in dismissing the appeal only on the point of limitation, which is against the principle of natural justice and pleated that the delay of 10 days in filing the appeal before the CIT(A) be condoned and the assessee is ready to furnish all the details relating to the compensation received from the Government towards compulsory acquisition of agricultural land with proper evidences.
8. Per contra, the Ld. DR appearing for the Revenue, brought to our attention that the assessment order passed by the AO is an ex-parte order under Section 144, after affording proper opportunities to the assessee and the assessee neither filed the return under Section 139(1) nor in response to the 148 notice. Thus the assessee being non-cooperative with the Department, the dismissal order made by CIT(A) is to be upheld.
9. We have given our thoughtful consideration and perused the materials available on record. Considering the fact that the assessee is an agriculturist and never filed Return of Income as there is no income assessable to income tax and as pleaded by the assessee, that the cash deposits in HDFC bank and State Bank of India are nothing but the compensation received from State Government on the compulsory acquisition on agricultural land cannot be brushed aside. At the same time the Revenue cannot make the additions under Section 69A for the reason that assessee has not cooperated with the department. To meet the ends of justice we deem it fit to condone the delay of 10 days in filing the appeal before the Ld. CIT(A) and, thus, we condone the same. Further we set-aside the order passed by the Ld. CIT(A) and remand the matter back to the Ld. CIT(A) with a direction to pass fresh order upon giving adequate opportunity to the assessee to explain its case and pass orders in accordance with law. Needless to state the assessee, should file all the materials of its claim before the Ld. CIT(A) and cooperate for the appellate proceedings. On this directions the appeal filed by the assessee is allowed for statistical purposes.
10. In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the Court on 11.05.2022 at Ahmedabad.
