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TMI Blog2024 (6) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... iling the appeal is in ITA No.670/SRT/2023 (Rajeshbhai Nanubhai Ahir). The contents of the petition for condonation of delay are reproduced below: "I, Rajeshbliai Nanubhai Ahir -aged 47 years residing at AT Post Ahirwas Karvad, Ahir Faliya Road, Pardi, Valsad - 396191, Business - Agriculturist, Education - 10th, do hereby solemnly affirm and state as under: 1. That Assessment order u/s 144 r.w.s. 147 was passed on 29/09/2017. The sole addition made is towards cash deposits in bank accounts. In assessment order addition is made in hands of assessee-son on protective basis and in hands of assessee's father Shri Nanubhai P. Ahir on substantive basis. 2. Against the assessment order, we've preferred an appeal before CIT(A). The CIT(A) passed ex-parte order on 12.09.2022 3. The appeal should have been filed before 11.11.2022. Since appeal is presented on. 05.10.2023, it was late by 327 days. We, therefore seek your honour's indulgence in terms of S. 253(5) of income tax act. We explain reasons that caused delay in presenting appeal as under; 4. My wife Smt Padmaben Rajeshbhai Ahir, Age about 43 years becoming sick every now and then since couple of years and we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee explained the reasons of delay, stating that his wife was felling severe illness; and for that assessee furnished before us medical documents and Doctor's certificate, which clearly demonstrates that assessee's wife was felling severe illness and assessee was alone to attend his wife's care and due to continuous tension environment in the family, the assessee could not pay attention on taxation matters, hence, delay has occurred. We note that reasons given in the above stated affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing this appeal. We, therefore, condone the delay and admit the appeal for hearing. 7. We note that these are two appeals, vide ITA No.669/SRT/2023 for AY.2010-11 (Nanubhai Ukadbhai Ahir), in this case, the Assessing Officer has made substantive addition. However, the Assessing Officer also made protective addition in ITA No.670/SRT/2023 for assessment year (AY).2010-11 (Rajeshbhai Nanubhai Ahir). In ITA No.669/SRT/2023 (substantive addition), the grounds of appeal raised by the assessee are as follows: "1. That on facts and circumstances of case as well as law on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act was issued by Assessing Officer on 23.03.2017, which was duly served upon the assessee. The assessee did not respond to the above said notice u/s 148 of the Act. Due to change of incumbent, notice u/s.142(1) r.w.s 129 of the Act was issued on 23.06.2017 along with questionnaire and duly served upon the assessee. In response to the aforesaid notices, the assessee, attended from time to time and submitted the details. On verification of bank statement of bank account No. 1000/3349 maintained with Sardar Bhiladwala Pardi Peoples Co-op. Bank Ltd., Chanod Branch, it was noticed by the Assessing Officer that during the F.Y.2009-10 relevant to A.Y.2010- 11, the assessee has deposited cash aggregating to Rs. 16,50,000/- on various dates in the said bank account. During the course of assessment proceedings, the assessee was asked to explain the source of the said cash deposited with supporting evidence. The assessee merely explained that cash so deposited was held by assessee from previous years. As the assessee's explanation is not accompanied with evidence and the reason for keeping of huge amount in home, which was not explained, hence the contention of the assessee was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year". Therefore, AO held that in the instant case, an amount of Rs. 16,50,000/- was deposited in above mentioned bank accounts held by the assessee and the assessee failed to explain the sources of said cash amount with supporting evidence. As such, the alleged amount of Rs. 16,50,000/- was treated as income of the assessee within the meaning of provisions of section 69A of the Act and therefore Assessing Officer made the addition of Rs. 16,50,000/- in the hands of the assessee. 11. During the course of assessment proceedings, on verification of bank statement of bank account No. 1000/3349 maintained with Sardar Bhiladwala Pardi Peoples Co-Op. Bank Ltd., Chanod Branch, it was noticed by assessing officer that during the year under consideration, the assessee has earned interest income of Rs. 1,943/- on saving bank account. As the assessee had not filed his return of income for the A.Y.2010-11, the same has not been offered for taxation. Therefore, undisclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng monthly expenses for printing and stationary and staff welfare expenses. However, by taking a liberal view, even if the cash book is admitted to be genuine, it is clear that the appellant is having day to day expenses commensurate to his income. 5.2 Keeping this in view, it is odd that the entire cash withdrawals of Rs. 2,37,000 from bank account during 2009-10 was re-deposited as cash into the same account. Which means absolutely nothing was spent on day to day expenses which the appellant himself shows in the cash book. Another contention of the appellant is that, he had opening cash balance in hand of Rs. 10,85,063 which is due to cash withdrawn in preceding financial year, i.e. F.Y.2008-2009. As per his own submission mentioned above he received only Rs. 5,46,164 from sale of sugarcane during FY 2008-09. Then how could he withdrew cash of Rs. 10,85,063? He could not submit bank account statement to prove this withdrawal. Even if he had other income, still as per cash book he have substantial expenses. Another contention is that from April to June 2009 assessee has received agriculture income to the tune of Rs. 3,51,673. Apparently, entire income was deposited as cash into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces for agricultural activities, therefore considering the size of the landholding, the addition made by the Assessing Officer may be deleted. The ld Counsel further stated that if substantive addition gets deleted then protective addition should also be deleted in the hands of son namely, Rajeshbhai Nanubhai Ahir. 16. On the other hand, Learned Senior Departmental Representative (ld. Sr. DR) for the Revenue has argued that during the appellate proceedings the assessee submitted addition evidences which were sent to Assessing Officer for remand report, however, ld CIT(A) did not remind the Assessing Officer to send the remand report, and pass the order without providing sufficient opportunity to the Assessing Officer, which is against the principle of natural justice. At least one reminder should be sent to the Assessing Officer to submit the remand report, however, ld CIT(A) failed to do so. 17. Learned Senior Departmental Representative, further argued that in appeal Number, vide ITA No. 670/SRT/2023, Rajeshbhai Nanubhai Ahir, there is ex-parte order by ld CIT(A). There are no findings on merit in this case by ld CIT(A). If the order of ld CIT(A) is an ex-parte order then this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond relates to protective addition, which was made in the hands of son, namely, Rajeshbhai Nanubhai Ahir, vide ITA No.670/SRT/2023, should be remitted back to the file of ld CIT(A) for fresh adjudication. We also direct the ld CIT(A) that these both appeals should be decided together, as substantive addition and protective addition are involved on same issue. The independent issues involved in these appeals should also be adjudicated by ld CIT(A) in accordance with law. We direct the assessee to submit relevant documents and details before ld CIT(A), as and when called by ld CIT(A), during the appellate proceedings. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) in both the cases and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on merits. For statistical purposes, both the appeals of the assessee are treated, as allowed.
21. In the combined result, both appeals filed by the assessee are allowed for statistical purposes, in above terms.
Registry is directed to place one copy of this order in all appeals folder / case file(s).
Order is pronounced on 23/02/2024 in the open court. X X X X Extracts X X X X X X X X Extracts X X X X
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