MOHINDER PAL SUTHAR,SIRSA vs. ITO, W-3, SIRSA

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.

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.

the delay being condoned.

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’). 3. Dismissed as withdrawn.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. 2. 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

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and the parties were directed to argue the appeal on merits in

case they were ready to do so.

grounds filed before the ITAT submitted that the assessee

seeks substitution of the grounds raised originally. The

Revised grounds read as under :

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.

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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.

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

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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

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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.

Revenue on consideration of the record had no objection to the

request of remand back to the AO.

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

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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.

above extent.

Order pronounced on 25th June,2021.

Sd/- (�दवा �संह ) (DIVA SINGH) �या�यक सद�य/Judicial Member “पूनम” आदेश क� �ितिलिप अ�ेिषत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�/ CIT 4. आयकर आयु� (अपील)/ The CIT(A) 5. िवभागीय �ितिनिध, आयकर अपीलीय आिधकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar