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Judgment
PER SANJAY AWASTHI, ACCOUNTANT MEMBER:
The present appeal is reported to be time barred by 59 days by the ITAT Registry and the assessee has requested for condonation of delay as under: -
“1.The Appellant is preferring the present appeal before the Hon'ble Income Tax Appellate Tribunal against the order dated 06.03.2025 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi under Section 250 of the Income Tax Act, 1961.
2.I am an illiterate person and not well versed with the technicalities of income tax law and procedures. I have remained dependent on my accountant and consultant for all tax related compliances and proceedings.
3.The limitation period for filing the appeal, in terms of Section 253(3) of the Act read with Rule 47 of the Income Tax (Appellate Tribunal) Rules, 1963, expired on 31.05.2025, i.e., 60 days from the end of the month in which the impugned order was passed.
4.However, due to inadvertence and circumstances beyond the control of the Appellant, there has been a delay of approximately 60 days.
5.During the relevant period, appellate orders were passed in respect of two assessment years, namely AY 2015-16 and the present AY 2016-17. While the order for AY 2015-16, which was passed around the same time, was duly forwarded to the Appellant’s consultant and acted upon promptly, the order for AY 2016-17 was inadvertently overlooked and was not forwarded for necessary action.
6.The Appellant was under a bona fide belief that all relevant proceedings had already been attended to. It was only when the Appellant’s accountant, who regularly monitors the status of income-tax proceedings on the e-filing portal, came across the appellate order for AY 2016-17, that the lapse came to light.
7 Upon becoming aware, the Appellant immediately shared the said order with his consultant, and steps were taken to file the present appeal without further delay. The delay thus caused is purely inadvertent and unintentional, and occurred due to reasons beyond the Appellant’s control.
8.The Appellant further submits that no physical copy of the order for AY 201S- 17 was ever received, and therefore, the Appellant had no knowledge of the same until it was viewed on the portal.
9.The Hon’ble Supreme Court in Collector, Land Acquisition v. Mst. Katiji [(1987) 167 ITR 471 (SC)) has held that a liberal and justice oriented approach should be adopted in such matters and that substantial justice should prevail over hyper-technical considerations.
10.In view of the above bona fide and reasonable cause, it is respectfully prayed that the delay in filing the present appeal may kindly be condoned and the appeal may be admitted for adjudication on merits in the interest of justice.”
Considering the reasons given in the said petition the delay is hereby condoned and the appeal is admitted for adjudication.
This appeal arises from order dated 06.03.2025, passed u/s 250 of the Income Tax Act, 1961 (hereafter as “the Act”) by Ld. CIT(A)-NFAC, Delhi. In this case, the Ld. AO issued a notice u/s 148 to the assessee due to cash payment of Rs.27.64 [u/s 40A(3) of the Act] crores made for purchase of live-stock; alleged excess claim of Rs.9,37,000/- in respect of salary and wages paid; and alleged excessive claim of interest paid on car loan and depreciation on car.
Aggrieved with this the assessee approached the Ld. CIT(A) where also he could not succeed on the basis of findings given in the impugned order. Regarding the addition made u/s 40A(3) it has been held that the protection provided under Rule 6DD of the I.T. Rules was not applicable on the assessee and therefore the Ld. AO was justified in invoking the provisions of section 40A(3) of the Act. Similarly, regarding the other additions, the Ld. CIT(A) has upheld the action of Ld. AO. It is also seen that the assessee had raised grounds challenging the initiation of proceedings u/s 147 also, but that issue has also been adjudicated against the assessee.
Further aggrieved, the assessee has approached the ITAT with grounds which challenged the reopening on the ground of alleged improper approval u/s 151 of the Act and also generally the legality of the said proceedings.There are grounds which challenged the addition on merit also.
Before us the Ld. AR argued that the proceedings where illegal since on identical facts in earlier years the very same AO and the very same approving authorities had initiated reopening proceedings and thereafter the resultant assessment was actually made on the returned income. The Ld. AR pointed out that for AY 2011-12 the copy of reasons recorded (placed at pages 399 to 402 of the Paper Book) was on the cash purchases of live-stock and it was proposed to treat the same u/s 40A(3) of the Act. Thereafter, through assessment order dated 07.12.2018 (placed at the pages 404 to 405 of the Paper Book), the returned income has been accepted without any addition whatsoever u/s 40A(3) of the Act. Similarly, it was pointed out that for AYs 2013-14, 2014-15 & 2015-16 also notices u/s 148 of the Act were issued with reasons pertaining to large cash transactions and violation of section 40A(3). In all these years the Ld. AO accepted the return of income under these proceedings. Here it may be pointed out that the Ld. AR has not placed on record the assessment order for AY 2015-16, even though the notice u/s 148 and the reasons recorded for reopening have been duly placed on record. The Ld. AR made a statement at the bar that for this year also the returned income was accepted by the Ld. AO. In light of the fact that for several past years the assessee’s cases were reopened on the grounds of cash transactions and thereafter in the ensuing assessment proceedings the returned income has been accepted. The Ld. AR relied on the case of Prem Kumar Chopra reported in 456 ITR 8 (Del) to canvass the point that where the same AO presented with identical facts and replies for different assessment years, accepted the explanation in one year but proceeded to adversely deal with the same information in another year, then that action would be unjustified in the eyes of law. The Ld. AR argued that the information for all the years followed from the same source and pertained to cash transactions which, prima facie, would be hit by the provisions of section 40A(3) of the Act then if after verification in earlier years the Ld. AO has accepted the assessee’s contention then there was no reason why on the same set of facts in a subsequent year, an adverse view would be taken. The Ld. AR also pointed out several other infirmities in the assumption of jurisdiction and stated that on same set of facts different views were being taken which was merely a change of opinion and not any change in facts. The Ld. AR also pleaded that the case of the assessee was covered under Rule 6DD(e)(ii) and even on merit no addition was possible.
The Ld. DR relied on the findings given in the orders of authorities below and stated that the impugned assessment order was passed by a different AO (Faceless) and therefore the assertion that the same AO was adopting different stand was misconceived. The Ld. DR also stated that the principle of res-judicata does not apply to Income tax proceedings and a different finding by a different AO deserve to be respected.
We have carefully considered the rival submissions and have gone through the record before us. It is seen that the issue of cash transactions and the issue of purchases made in cash, ostensibly in violation of section 40A(3) of the Act, has been an ongoing controversy in the assessee’s case since the year 2011-12. It is seen that for four preceding years the case of the assessee has been reopened and thereafter the returned income has been accepted. A perusal of the orders of authorities below does not reveal any new enquiry or facts which could prompt a different view than what has been taken in earlier years where the returned income has been accepted. The case of Prem Kumar Chopra (supra) has considerable binding precedent in deciding the case in favour of the assessee purely on the basis of the facts before us. It deserves to be held that considering no new fact having come to light in the present year, the controversy regarding the cash transactions has to be treated as becoming final due to the earlier years having been accepted on returned income basis, on same set of facts.
Since the assessee has succeeded on the ground of challenging the assumption of jurisdiction, therefore, we do not deem it fit to adjudicate on other grounds, which are left open at this stage.
In the result, appeal of the assessee is allowed.