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Income Tax Appellate Tribunal, CHANDIGARH
Before: SMT. DIVA SINGH, JM
आदेश/ORDER
The present appeal has been filed by the assessee wherein the correctness of the order dated 07.08.2018 of CIT(A) Rohtak pertaining to 2012-13 assessment year is assailed on various grounds.
2. However, before proceeding to address the grounds raised by the assessee, it is relevant to first address the delay of 210
ITA 827/CHD/2019 A.Y. 2012-13 Page 2 of 9 days pointed out by the Registry in the filing of the present appeal.
2.1 The ld. AR inviting attention to the Condonation of Delay Application submitted that the delay has occurred on account of ignorance of the assessee who instead of availing of the statutory remedy of filing an appeal before the ITAT approached the Hon'ble High Court in a Civil Writ Petition. The said writ petition was disposed on 25.03.2019, copy of which is available at Paper Book page 53. Relying upon the Affidavit of the assessee affirming these facts, prayer was made that the delay may be condoned as the assessee has been live and alert about his responsibilities, however, by mistaken understanding of law as offered by his counsel, he went to the wrong Forum.
Accordingly, it was his submission that delay has occurred on account of these reasons and hence, it may be condoned.
3. The ld. Sr.DR considering the record had no objection to the delay being condoned.
I have heard the submissions and perused the material on record. In the facts of the present case, it is seen that the assessee aggrieved by the impugned order filed a Civil Writ Petition No. 7839 of 2019 before the Hon'ble Punjab & Haryana High Court. (Copy of the same is available at pages 49 to 52).
It is seen that the assessee's CWP was disposed of by the ITA 827/CHD/2019 A.Y. 2012-13 Page 3 of 9 Hon'ble High Court vide order dated 25.03.2019 holding as under :
“2. After arguing for sometime, the petitioner, who appears in-person states that he may be allowed to withdraw the present writ petition with liberty to take recourse to the alternative remedies as are available to him, in accordance with law. It was not disputed that the order dated 07th August, 2018 (Annexure P-23), passed by the Commissioner of Income Tax (Appeals) [in short 'the CIT(A)'] is appealable before the Income Tax Appellate Tribunal (ITAT) under the provisions of Income Tax Act, 1961 (in short ‘the Act’).
Dismissed as withdrawn. It shall, however, be open to the petitioner to take recourse to the remedies as may be available to him, in accordance with law.” (emphasis supplied) 4.1 It is also seen that these facts stated in the Condonation of Delay Application have been affirmed by the assessee also on an affidavit dated 03.03.2020. The contents of this affidavit read as under :
“1. That earlier a Civil Writ Petition has been filed on 18.03.2019 on the advice of an I. Tax practitioner as nothing has been mentioned in the order dated 07.08.2018 regarding further appeal and it has been suggested by an Income Tax Practitioner that a writ is maintainable against the said order. Therefore, a CWP No.7839 of 2019 has been filed before the Hon'ble High Court, Chandigarh, which has been disposed off on 25.03.2.019 with a liberty to file the appeal before ITAT. Hence, the delay of 210 days upto date has occurred in filing the accompanied appeal.
That said delay of 210 days in filing the present appeal has occurred due to abovesaid bonafide reasons and not due to any deliberate negligence on the part of Appellant.
3. That the Appellant has a prima facie case in his favour and in case the above said delay in filing the Appellant will suffer an irreparable loss 4. That deponent has filed an Appeal No.827/Chandi/2019, which is pending before SMC, Income Tax Appellate Tribunal, Chandigarh Bench for 12.03.2020. In the said appeal, appellant/deponent has been directed to file his affidavit on the stamp paper in support of his earlier unstamped
ITA 827/CHD/2019 A.Y. 2012-13 Page 4 of 9 affidavit for condonation of delay dated 24.05.2019. Hence, the present affidavit. Therefore, it is requested to allow the accompanied application by condoning a delay of 210 days upto date in filing the appeal in the interest of justice.”
(emphasis supplied)
4.2. Accordingly, in the aforementioned peculiar facts and circumstances, it is seen that the assessee has proceeded on an incorrect advice of a professional and approached the Hon'ble Punjab & Haryana High Court for a remedy which was statutorily available under the Income Tax Act. These submissions on an affidavit fully supports the argument that the assessee’s action has been bonafide as the mistake of acting on the incorrect advice is the reason for the delay in the filing of the appeal. In the peculiar facts and circumstances as they stand, I find that it is not a case where the assessee can be said to have carelessly slept over his rights and responsibilities. It is further seen that no undue advantage has been derived by the assessee by filing of the present appeal late, nor any vested right of the Revenue is unsettled by delayed filing of the appeal by the assessee. Accordingly, accepting the explanation of the assessee as bonafide and true, the delay is condoned. Said order was pronounced at the time of virtual hearing itself in the presence of the parties via Webex
ITA 827/CHD/2019 A.Y. 2012-13 Page 5 of 9 and the parties were directed to argue the appeal on merits in case they were ready to do so.
The ld. AR inviting attention to the copy of the revised grounds filed before the ITAT submitted that the assessee seeks substitution of the grounds raised originally. The Revised grounds read as under :
That order passed u/s 250(6) of the Income Tax Act, 1961 by the ld. Commissioner of Income Tax (Appeals) Rohtak is against law and facts on the file in am he gravely erred in holding the action of the ld. Assessing Officer in initiating assessment proceedings under Section 143(3)/144 of the Income Tax Act, 1961.
2. That further Learned CIT(A) has gravely erred in upholding the addition of Rs.6,68,021/- as long term capital gain and calculation of sale consideration by applying DLC rate applicable to the 2 S.T.R., Municipal area, New Mandi Gharsana. instead of undeveloped rural area of village 2 STR within the jurisdiction of Gram Panchayat 17 M.D., Tehsil Gharsana, District Sri Ganganagar, Rajasthan and without calling the valuation report or market rate reports as on the date of transaction. 3. That further Learned CIT(A) has gravely erred ir declining the valuation report dated 29.12.2017 prepared as on 27.12.2011 submitted as additional evidence under rule 46A of the I. Tax Rules, 1962 and accepting the report of Assistant Valuation Officer, Income Tax Department, Jodhpur (Raj.) which has been prepared by including the valuation of building raised by the buyer after the year 2011.”
The ld. Sr.DR was required to address whether the department has any objection to the substitution of the grounds raised originally. The ld. Sr.DR on going through the records submitted that he had no objection as nothing new has been agitated in the present grounds when compared with the original grounds raised.
ITA 827/CHD/2019 A.Y. 2012-13 Page 6 of 9
I have seen the original grounds available on record. It is further seen that the original grounds raised before the ITAT were found to be argumentative and were directed to be Revised by the Co-ordinate Bench on 27.02.2020. Considering the revised grounds now available, noting that the department has no objection thereto, these are permitted to be substituted.
The ld. AR addressing the revised grounds drew specific attention to ground No. 2. Referring to the said ground, it was submitted that in the facts of the present case, some essential facts will need to be verified. In order to determine the issue, it was submitted the exact location of the property sold needs to be ascertained as this will determine the specific rate applicable qua the stamp duty paid and levied. It was submitted that on this issue amongst the assessee and the department, there is a confusion and dispute. It is only once the location is settled that the application of rates will be relevant. On account of this fact the grievance of the assessee persists. It was his submission that for the DLC rate applicable to 2 STR Municipal Area, Gharsana, there were two rates applicable, one was for the area on which urban rates were applicable and one was an area which was undeveloped rural area within the jurisdiction of Gram Panchayat, 17 MD, Tehsil Gharsana where rural rates were applicable. The assessee
ITA 827/CHD/2019 A.Y. 2012-13 Page 7 of 9 being a seller was unaffected by the Stamp Duty incurred for the purchase of the property as the Stamp Duty costs were borne and are to be borne by the buyer. The property sold was in undeveloped rural area. It was agreed that it is a fact that the buyer has raised no dispute on the DLC rates. However, as far as the assessee is concerned, he is impacted by the rates on account of the fact that the calculation for his Long Term Capital Gain etc. takes this aspect into consideration. Thus, the issue has been raised by him right from the beginning as he is impacted by the incorrect facts remaining on record hence, his prayer that correct facts be verified. It was clarified that since a person who has to bear the Stamp Duty cost has not agitated the issue under the law, there is no fora available to the assessee to agitate his grievance. It was pleaded that for determining the issue, it is necessary to arrive at a correct valuation on account of which the specific rate applicable to the undeveloped rural area wherein the assessee had sold the property needs to be looked into. For this purposes, the request is made that a physical verification of the exact location where the property sold is situated may be examined and the rate applicable thereto at the relevant point of time may be taken into consideration for the purpose of determining the issue raised in ground No.
2. The assessee, it was submitted, has agitated this issue all along, however, the ITA 827/CHD/2019 A.Y. 2012-13 Page 8 of 9 Department has failed to address it on the basis of facts and repeatedly have scuttled it referring to non issues. The assessee in the facts of the present case, it was his submission has sought to place report of some valuation of the specific property which has been rejected arbitrarily without caring to address the correct facts. In the peculiar facts it was his limited prayer that the correct facts may be seen and the rate applicable to the specific property at the relevant point of time be considered for which purposes, remand was requested.
Mr. Ashok Khanna, Sr. DR appearing on behalf of the Revenue on consideration of the record had no objection to the request of remand back to the AO.
It is seen that the assessee has also raised ground No. 3 assailing the rejection of the fresh evidence sought to be raised before the CIT(A), however, it is noticed that he has chosen not to argue this and on query has confined his arguments only to the issue being remanded back to the AO for determining whether the specific property sold was to be governed by the DLC Rates applicable to rural undeveloped area or the DLC rates applicable to an urban area. It is seen that no objection has been posed by the Revenue for enquiry and verification on facts, accordingly, in the light of the submissions of the parties before the Bench and on considering the facts, the request for ITA 827/CHD/2019 A.Y. 2012-13 Page 9 of 9 verification of facts appears to be reasonable and thus, in the interests of substantial justice, the impugned order is set aside and the issue is restored back to the file of the AO with a direction to pass a speaking order in accordance with law after carrying out the necessary verification on facts. The assessee in its own interests is directed to ensure full and proper verification before the authorities. Said order was pronounced at the time of virtual hearing itself in the presence of the parties via Webex.
In the result, appeal of the assessee is allowed to the above extent.
Order pronounced on 25th June,2021.