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TMI Blog2021 (12) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... change in the quantum of addition made. In this appeal, the assessee has raised following grounds of appeal: "1.0 The order passed by ld. CIT(A) is bad in law considering the facts and circumstances of the case. 2.0 That on the facts and the circumstances of the case, the delay in filing of appeal may kindly be condoned since the appellant was completely unaware and was under the false impression that his previous income tax consultant has filed appeal against the order of the CIT(A) before the ITAT. 3.0 That on the facts and in the circumstances of the case, the ld. CIT(A) was not justified and grossly erred in upholding order of ld. AO without appreciating the fact that assessment order nowhere specifies under which section the addition has been made. 4.0 Without prejudice to the above grounds presuming but not admitting that the addition on account of cash deposits has been made by the AO u/s 68 of the Act the same is invalid and unlawful, inasmuch as bank statement is consistently held to be not books of accounts for the purposes of section 68 of the Act. 5.0 Without prejudice to the above grounds, based on the facts and the circumstances of the case, the ld. CIT(A) g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icated to the assessee or to the Principal Commissioner or Commissioner, as the case may be...." However, I am filing the appeal now. Such delay of 1402 days i.e from 22-052017 to 24-03-2021 in filing of the present appeal before ITAT is because of the following reasons:- "1. That I was always under impression that previous consultant has filed the appeal before ITAT against the order of the CIT(Appeals). It was only when I appointed a new Income Tax Consultant in Feb/21 and while he was reviewing and getting documents and previous/old records from my previous consultant that the new consultant informed to me that no appeal has been filed before the ITAT. When I confronted my earlier consultant about the said fact he also has confirmed that no appeal has been preferred by him before the ITAT. Further, I have already lodged a complaint against previous consultant for breach of trust. The copy of complaint filed by me is also enclosed herewith. 2. In terms of section 253(5) of the Act the Appellate Tribunal can condone the delay in filing of memorandum of cross objections or appeal if there is sufficient cause. The provisions of Section 253(5) of the Act states as under:- " ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7) 86 TM 98] dated 19-09-2017 wherein appeal has been accepted with condonation of delay of 2984 days by taking a plea that he was wrongly advised by his Chartered Accountant earlier not to file appeal, in view of fact that assessee produced affidavit of Chartered Accountant in support of his plea and said affidavit was not contested by revenue authorities, Tribunal was not justified in refusing to condone delay in filing appeal. Hence, Hon'ble Bombay High Court decided the case in favour of assessee. (7) That I had no intention to jeopardize the interest of the revenue by delaying the filing of the appeal. (8) In view of the above, it is prayed before your goodself to kindly condone the delay of 1402 days in filing appeal i.e from 22-05-2017 to 24-03-2021 in fling the present appeal and admit the same for adjudication in the interest of justice. 6. On the other hand, the ld DR has raised objection about condonation of delay and submitted that the facts and reasons stated by the assessee for condoning the delay are not sufficient to condone the delay. The attitude of the assessee is negligible in nature and he has not interested in pursuing his matter before the ITAT. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old records from the previous consultant that the new consultant informed the assessee that no appeal has been filed before the ITAT. When confronted with the earlier consultant about the said fact, he also has confirmed that no appeal has been preferred by him before the ITAT. Against the said act by the previous consultant, the assessee had already lodged a complaint against him for breach of trust. The word "sufficient cause" is an important phrase in Section 5 of the Limitation Act. Since the section is not a matter of right for the party who pleads the condonation, but it depends on the discretion of the court. The court must be satisfied that the delay is caused due to a genuine reason. It is sufficiency of the cause which counts, and not length of delay - Expression "sufficient cause" should receive a liberal construction - As regards delay on the part of State, certain amount of latitude is not impermissible - Expression "sufficient cause" should be considered with pragmatism in justice-oriented approach rather than technical detection of sufficient cause for explaining every day's delay. In this regard, we draw strength from the decision in the case of Concord of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee was processed U/s 143(1) of the Income Tax Act, 1961 (in short, the Act). It was noticed by the A.O. that during the year under consideration, the assessee deposited cash of Rs. 4,45,588/- in his savings bank account No. 104104000015455 maintained with IDBI bank and this account was not disclosed by the assessee in his return of income. Thereafter, the A.O. made enquiry and verification completed the assessment determining total income of Rs. 5,69,850/- by making addition of Rs. 4,45,588/- on account of cash deposit in bank account out of undisclosed sources of income. 11. Being aggrieved by the order of the A.O., the assessee carried the matter before the ld. CIT(A), who after considering the material placed on record, confirmed the action of the A.O. Against which, the assessee has preferred the present appeal before the ITAT on the grounds mentioned above. 12. Having considering the rival contentions and carefully perused the material placed on record. From perusal of the record, we observed that the order of the AO as well as that of the CIT(A) that they have not specifically mentioned as to under which section of the Act the additions have been made. In this regard, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, the addition made by the A.O in respect of the cash deposits of Rs. 7,13,000/- in the bank accounts of the assessee by invoking Section 68 has to fail, for the very reason that as per the judgment of the Hon'ble Bombay High Court in the case of CIT Vs. Bhaichand N. Gandhi (1983) 141 ITR 67 (Bombay), a bank pass book or bank statement cannot be considered to be a 'book' maintained by the assessee for any previous year for the purpose of Section 68 of the Act. Therefore, on this count itself the impugned addition made and sustained deserves to be deleted and we direct to delete the same" We also draw strength from the decision of the Hon'ble Bombay High Court in the case of CIT Vs Bhaichand N Gandhi (1983) 141 ITR 67 (Bombay) wherein the High Court has held as under:- "As the Tribunal has pointed out, it is fairly well settled that when moneys are deposited in a bank, the relationship that is constituted between the banker and the customer is one of debtor and creditor and not of trustee and beneficiary. Applying this principle, the pass book supplied by the hank to its constituent is only a copy of the constituent 's account in the books maintained by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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