BHAGAT PARKASH KAMAL SHARMA,JAMMU vs. INCOME TAX OFFICER WARD -1 (1), JAMMU

Assessee has filed an application for condonation of delay of 7 days.

The assessment for impugned assessment year was completed by the ITO, Nagaland which is not under jurisdiction of the ITAT, Amritsar. The clarification was asked for about the change of jurisdiction. The ld. Counsel for assessee (in short AR) submitted the documents. As per the assessee the application was submitted by the assessee u/s 127 for change of jurisdiction from Nagaland to Jammu before the revenue authority. The order was passed u/s 127(2) of the Act dated 01.10.2019 and the current jurisdiction is fixed in ITO Ward-1(1), Jammu.

Brief fact of the case is that the ld. AR informed that the appeal was rejected by the ld. CIT(A) on the ground of limitation. The addition was made by the ld. AO in deposit of cash in the bank which was treatedas unexplained deposit u/s 68 amount of Rs.67,32,000/- and addition of short-term capital gain for sale of land related to 1/3 share of the assessee amount of Rs.21 lacs. Being aggrieved assessee filed an appeal before the ld. CIT(A). The ld. CIT(A) had rejected the appeal of the assessee without considering the ground, only on point of limitation for delay filing of appeal. Being aggrieved assessee filed an appeal before us.

During hearing before ITAT, the ld. AR filed written submission which are kept in the record the ld. AR has pointed out the relevant paragraph no. 6.17 of the order of ld. CIT(A) which is extracted as below: “6.17 This is not a case of change in law which is beneficial to the appellant and hence the delay in seeking such remedy may be condoned in the furtherance of substantial justice. Therefore, there is no denial or destruction of a statutory right in this case, by adhering to the prescribed period of limitation as otherwise it will only lead to protract the matter endlessly and will undoubtedly render the legislative scheme and intention behind the concerned provision otiose as held by the Hon’ble Supreme Court in the case of Assistant Commissioner

The ld. CIT(A) only on point of limitation rejected the appeal for absence of the ‘sufficient cause’for delay & contravening the provision of section 249(2) of the Act for delay more than 28 months. During hearing, the ld. AR produced the affidavit, which is executed by the assessee and explanation of reason of delay for filing appeal. As per explanation, the assessee is a patient of psychotic symptoms, mood changes and was under treatment of Psychosis-ICD-9. So, the assessee was unable to present the matter before the AO and the delay for filing appeal was occurred due to his medical ground. The copy of the affidavit is enclosed in APB pages 1 to 3.

The ld. AR further informed that the cash was deposited in bank account from sale of property made by the assessee during the F.Y. 2012-13. There is sufficient explanation with assessee against the addition. Only for health ground the assessee was unable to explain the same before the ld. AO.

The ld. DR only relied on the order of both the revenue authorities.

We heard the rival submission and perused the documents available on the record. During the hearing the assessee submitted the medical reports which are annexed inAPB page 4 to 26. The medical report and affidavit of the assessee are clearly indicated that the assessee was suffering from psychotic symptoms and mood changes and also going through a medical treatment. The ld. AR submitted that the cash deposit in the bank account was from the sale of property. Due to medical ground the assessee was unable to produce the documents before the ld. AO in proper manned. The ld. CIT(A) has not adjudicated the quantum appeal due to the ground of limitation. There is sufficient cause for assessee for filing of appeal beyond the limitation. We find that the assessee was not properly represented before any of the lower authorities. The order of assessment is passed by the ld. AO u/s 144. So, in our considered view, we remit back the matter to the ld. AO for fresh adjudication de novo. Needless to say, that the AO shall provide proper and adequate opportunity of being heard to the assessee in set aside proceedings. The evidence/explanations submitted by assessee in his defence shall be admitted by AO and adjudicated on merits in accordance with law. We order accordingly.

In the result, the appeal of the assessee bearing is allowed for statistical purposes.