TMI Blog2021 (12) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... n given by the assessee on the basis of entries in the bank statement considered the cash deposits of the assessee as the income of the assessee. It is important to mention here that the bank statements cannot be termed as books of accounts for the purposes of Sec. 68 - Also as found from perusal of the record that in the A.Y. 2007-08 2009-10 such cash deposits in the same bank account has been treated as sales executed through the assessee on which the assessee has earned commission income @ 7.5% on sale - A.O. as well as ld. CIT(A) have not specifically mentioned as to under which Section of the Act the additions have been made and also keeping in view the fact that Bank statement is constantly held to be not books of account for the purpose of Section 68 - we direct to delete the addition made U/s 68 - Decided in favour of assessee. - ITA Nos. 07 to 11/JODH/2021 - - - Dated:- 2-11-2021 - Shri Sandeep Gosain, Judicial Member And Shri Vikram Singh Yadav, Accountant Member For the Assessee : Shri S.S. Nagar, CA For the Revenue : Miss. Kajal Agarwal, JCIT-DR ORDER PER: SANDEEP GOSAIN, J.M. These are the appeals filed by the assessee agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the appellant on such amount. 6.0 That the appellant craves leave to add, amend, modify, rescind, supplement or alter any of the grounds stated hereinabove, either before or at the time of hearing of this appeal. 5. Rival contentions have been heard and record perused. From perusal of the record, we observed that there is delay of 1402 days in filing the present appeal, for which, the assessee has filed application for condonation of delay, in which he has submitted as under: Affidavit for condonation of delay in filing appeal before ITAT (Fortn-36) against the order of CIT(Appeals)-1 Udaipur. (1) I, Neeraj Paliwal Prop of M/s Paliwal Departmental Store aged about 52 years, son of Mr. Basanti Lalji Paliwal identified by PAN ADXPP3119P at present residing at Address Plot No.2 Kishore Nagar Extn. Scheme, Near LIC Office, Kankroli, Rajsamand do solemnly affirm and state on oath as under: (2) That we received an Assessment Order for the Assessment Year 2006-07 under section 144 r.w.s 147 of the Income Tax Act 1961 on 30-03-2013. (3) That as per the said assessment order we found that returned income has been enhanced by ₹ 4,45,588/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note that section 5 of the Limitation Act deals with condonation of delay in case of appeal. Since the limitation period for appeals is very short, this section was introduced to meet the end of justice so that the purpose of justice is not defeated if sufficient cause is present due to which the appeal could not be preferred. (4) The word sufficient cause is an important phrase in this section. 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. (5) In the case of Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi AIR 1979 SC 1666, the Hon ble Supreme Court has held that a legal advice tendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays delay in filing the present appeal and if the assessee takes advantage of not taking the action by the concerned consultant, it is not admissible in law. Therefore, the ld. DR has prayed to dismiss the appeal on the grounds of delay filing of the present appeal. 7. We have considered the rival submissions as well as relevant material on record. As regards the sufficiency of cause for filing the appeals belatedly, it is settled principles of law that the Courts have to take liberal approach while interpreting the expression sufficient cause for condonation of delay. In case of Collector, Land Acquisition Vs. Mst. Katiji (1987) 167 ITR 471, the Hon ble Supreme Court has laid down the principle that the power to condone the delay provided under the statute is to enable the Courts to do substantial justice to the parties by disposing of the matter on merits, therefore, while considering the matters for condonation of delay, the law must be applied in a meaningful manner which subserves ends of justice and technical considerations should not come on the way of cause of substantial justice. There is no quarrel that the explanation and reasons explained for delay must be bonafi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and factors for applying liberal principles and then said delay can be condoned. Eventually, an overall view in the larger interest of justice has to be taken. None should be deprived of an adjudication on merits unless the Court of law or the Tribunal/Appellate Authority finds that the litigant has deliberately and intentionally delayed filing of the appeal, that he is careless, negligent and his conduct is lacking in bona fides. These are, therefore, some of the relevant factors. Those factors should therefore necessarily go into an adjudication of the present nature. We also draw strength from the decision of Hon'ble Bombay High Court in the matter of Vijay Vishin Meghani -vs.- DCIT [(2017) 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 favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition is not justified due to the following reasons:- i). It has not been mentioned either by A.O. or by Ld. CIT(A) as to under which section of the Income Tax Act, these closing credit balances appearing as on 31.03.2012 could be added. Therefore, non-mentioning the precise provision of law makes the impugned addition bad in law. We also draw strength from decision of the Coordinate Bench of Bangalore ITAT in the case of Shree Ramareddy Ramesh -vs.- ITO ITA No. 2027/Bang/2016 wherein it has been held as under: About the third amount of ₹ 30,21,961/-, we find that this is a fact that no section is mentioned by the AO or CIT (A) for making this addition and for this reason alone, the addition is bad in law as per the tribunal order cited by the learned AR Of the assessee having been rendered in the case of Smt. Sudha Loyalka vs. ITO (Supra) wherein it was held that non mentioning the precise section makes the addition bad in law. 13. We noticed from perusal of the record that the ld. CIT(Appeals) has not specifically mentioned as to under which section of the Act addition has been done. Also, assessee during the course of assessment proceedings has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In view of this, the Tribunal was, with respect , justified in holding that the pass book supplied by the hank to the assessee in the present case could not be regarded as a hook of the assessee, that is, a book maintained by the assessee or under his instructions. In view, the Tribunal was justified in the conclusions at which it arrived. 15. We also found from perusal of the record that in the A.Y. 2007-08 2009-10 such cash deposits in the same bank account has been treated as sales executed through the assessee on which the assessee has earned commission income @ 7.5% on sale. In this regard the assessee has submitted that the Ld. CIT(A) grossly erred in treating the entire unexplained (deposit as income of assessee and the same should have been restricted to the commission income @ 7.5% earned by assessee on such amount and which has been accepted by the AO in subsequent Assessment Years. In this regard, we draw strength from the decision of the Coordinate bench of this Tribunal in the case of Uma Mandal -vs.- ITO [2021] 128 taxmann.com 369 (Jaipur - Trib.) wherein it has been held that where assessee had received certain amount in cash in her bank account, since a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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