TMI Blog2024 (4) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... ial justice is more important than the technical delays . On identical facts in the case of Gupta Emerald Mines (P.) Ltd. [ 2023 (10) TMI 1287 - SC ORDER] , the Hon ble Supreme Court has condoned the delay of the assessee and set aside the order of the ITAT .In the case of Gupta Emerald Mines P Ltd the Appellant claimed that Appellant had not received the copy of the order of the CIT(A). Also in HINDALCO INDUSTRIES LIMITED [ 2024 (1) TMI 1039 - BOMBAY HIGH COURT] principle of advancing substantial justice is of prime importance, while considering the question of condonation. Thus we condone the delay in filling the appeal. CIT(A) has to decide the appeal on merit and CIT(A) does not have any power to dismiss appeal for non-prosecution.In these facts and circumstances of the case we set aside the order of the CIT(A) to CIT(A) for de-novo adjudication after giving opportunity to the assessee. Appeal of the assessee is allowed for statistical purpose. - Shri S.S.Godara, Judicial Member And Dr. Dipak P. Ripote, Accountant Member For the Assessee : Smt.Pratibha R AR For the Revenue : Shri P S Shivshankar CIT-DR ORDER PER DR. DIPAK P. RIPOTE, AM: This appeal filed by the assessee again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant would have got one more opportunity to explained the same. Thus, the addition made has to be deleted. 8. The Id. CIT(A) ought to have given one more opportunity to the Appellant by sending notice through mail or registered post since all the notices were issued by the CIT(A) was in the portal. Therefore, the Appellant unable to respond or made the submission before the CIT(A). Accordingly, impugned addition confirmed by the CIT(A) is bad in law. 9. The learned CIT(A) ought to have appreciated that the cash deposits were part of it withdrawals and part of his income which was already disclosed in the return, without giving the opportunity the addition cannot be made as unexplained investment u/s 69 of the Act. Thus, the addition as made by the assessing authority is unsustainable and the learned CIT(A) ought to have deleted the impugned addition. 10. The learned CIT(A) ought to have given fair opportunity to the appellant to submit the evidence and to furnish written submission before the appellate order is made and having failed do so the impugned order is liable to be set aside. 11. On the facts the impugned estimate of addition as made by the assessing authority as susta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the submission of the assessee. Ld.AR submitted that the Ld.CIT(A) has not discussed anything and merely confirmed the assessment order. Ld.AR invited our attention to the paper book which contained confirmation letters by the Creditors. Submission of the Ld.Departmental Representative(ld.DR): 6. Ld.DR for the Revenue vehemently submitted that there was no valid reason for the delay and hence delay shall not be condoned. Ld.DR supported the order of the AO and ld.CIT(A). Findings and Analysis : 7. We have heard both the parties and perused the records. 7.1 Before discussing the issue of Delay in filling appeal we will like to reproduce the relevant part of the cryptic order of the ld.CIT(A). 3. During appeal proceedings, the assessee was given opportunities of being heard on 14.08.2017, 13.09.2017, 11.02.2019 finally on 11.03.2019. The assessee failed to appear on any of the opportunities afforded but filed a written submission Dt. 14.08.2017, containing photostat copy(s) of ledger extracts of various confirmation of accounts, copy(s) of some ledgers, cash book, bills, vouchers, challans, etc. The assessee was however, unable to produce any reason as to why the information and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount which was credited during the year only can be added. However, in this case there was carry forward from earlier years which has not been considered by the AO and ld.CIT(A). 7.4.1 In para 14 of the Assessment Order the AO has stated that as per 26AS statement assessee has received Interest on Fixed Deposit from Ratanakar Bank Ltd , which has not been shown in the Return of Income and accordingly added Rs. 40,063/- as undisclosed Interest. However, we have already mentioned that assessee had filed copy of Profit and Loss Account before the AO, on perusal of the Profit and Loss Account for A.Y.2014-15, it is observed that the Assessee had shown following Interest Income : Interest Income on Bank Deposits - 53302/- Interest on FD - 56855/- Int on IBS - 88330/- 7.4.2 Thus, the Assessee had shown Interest on FD. The AO has merely added Rs. 40,063/-without discussing what was the Total Interest as per 26 AS statement. It is possible that the Interest amount shown by the assessee includes Rs. 40,063/- . 7.4.3 The AO has also worked out corresponding FD in the Ratnakar Bank at Rs. 507087/- without actually calling the details from the Ratnakar Bank. The AO made addition of Rs. 507087 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2014. In the facts and circumstances of the case we deem it appropriate to condone the delay. Considering the amount involved in the appeals, we are also of the opinion that the appellant must have an opportunity of contesting the appeals before the Tribunal Unquote. 7.7 The Hon ble Bombay High Court has observed in the case of Hindalco Industries Ltd Vs. Pr.CIT, Writ Petition No.569 of 2023 that principle of advancing substantial justice is of prime importance, while considering the question of condonation. 7.8 Considering the principle of substantial justice, respectfully following the Hon ble Supreme Court and Hon ble Jurisdictional High Court, we condone the delay in filling the appeal. 7.9 We have already observed that the ld.CIT(A) failed to adjudicate the grounds of appeal raised by the assessee. Ld.CIT(A) has merely dismissed the appeal. 7.10 The Hon ble Jurisdictional Bombay High Court has held in the case of Pr.CIT(Central) Vs. Premkumar Arjundas Luthra (HUF) Bombay)/[2017] 297 CTR 614 (Bombay) as under : Quote, 8. From the aforesaid provisions, it is very clear once an appeal is preferred before the CIT(A), then in disposing of the appeal, he is obliged to make such fur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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