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Income Tax Appellate Tribunal, AHMEDABAD – BENCH ‘SMC’
Before: SHRI RAJPAL YADAV
आयकर अपील�य अ�धकरण, अहमदाबाद �यायपीठ - अहमदाबाद । IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD – BENCH ‘SMC’
BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER आयकर अपील सं./ ITA No. 2083 & 2084/Ahd/2017 �नधा�रण वष�/Assessment Year: 2009-10 Shri Manish Kumarpal Shah DCIT, Cir.2(1)(2) Prakash Chemicals Agencies Vs Baroda. Mahajan Lane Raopura, Vadodra 390 002.
आयकर अपील सं./ ITA No. 2085 & 2086/Ahd/2017 �नधा�रण वष�/Assessment Year: 2009-10 Shri Dilip Kumarpal Shah DCIT, Cir.2(1)(2) C/o. Trans Indiana Mfg.Co. Vs Baroda. Prakash Chemicals Agencies Mahajan Lane Raopura, Vadodra.
आयकर अपील सं./ ITA No. 2087 & 2088/Ahd/2017 �नधा�रण वष�/Assessment Year: 2009-10 Shri Pinakin Kumarpal Shah DCIT, Cir.2(1)(2) Prakash Chemicals Agencies Vs Baroda. Mahajan Lane Raopura, Vadodra.
अपीलाथ�/ (Appellant) �� यथ�/ (Respondent) Assessee by : Shri Surendra Modiani, AR Revenue by : Shri B.L. Meena, Sr.DR
सुनवाई क� तार�ख/Date of Hearing : 02/05/2019 घोषणा क� तार�ख /Date of Pronouncement : 06/05/2019 O R D E R Out of this bunch of six appeals, five are directed against separate orders of the ld.CIT(A) dated 7.2.2013 passed for the Asstt.Year 2009-10.
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ITA No.2084/Ahd/2017 is directed at the instance of assessee against order of the ld.CIT(A)28.6.2017.
The assessee had moved an application under section 154 of the Income Tax Act, 1961 in the order of the ld.CIT(A) dated 7.2.2013 and this application has been dismissed by the ld.CIT(A). Against that order present appeal in ITA No.2084/Ahd/2017 is directed.
Registry has pointed that all appeals of the assessee are time barred by 1578 days except ITA No.2084/Ahd/2017. In order to explain delay, all the appellants have filed almost verbatim same application. For the facility of reference, we take up the application filed in the case of Shri Manish Kumarpal Shah, which reads as under: “From:
Shri Manish kumarpal Shah Parakash Chemicals Agencies Mahajan Lane , Roapura, Vadodara.
Date; 12.09.2017
To, Income Tax Appellate Tribunal, 3rd and 4th Floor, Abhinav Arcade, Opposite Municipal school, Ellis bridge, Ahmedabad - 380006 Respected Sir,
Sub : Appeal before ITAT in case of Shri Manish kumarpal Shah for AY 2009-10
In the matter of the above referred assessee, we were in receipt of the appellate order u/s 143(3) dated 07.02.2013 on 25.03.2013 wherein the
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appellate order had confirmed the addition of Rs. 1112018/- u/s 50C. However your Honour we disagree with the said addition. This addition was made in respect of other co-owners of the concerned property. However we were in respect of the valuation report from the DVO in case of other co-owners, thereby the appellate order was being awaited. On account of this reason, there was a delay in the filing of the appeal. Secondly, our earlier CA is situated at Ahmedabad , so there was a communication gap and inadvertently appeal was remained to be filed so in the intent of justice, we request your Honour to condone the delay. Thus, as the appellate order was held in favour of the assessee, therefore w e request your Honour to accept the appeal and condone the delay,
Thanking You, Yours Faithfully
Sd/- Shri Manish kumarpal Shah (Authorized Signatory)”
Assessees have filed their respective affidavits, and all the affidavits are also verbatim same. Therefore, for the facility of reference, we take note of the affidavit of Shri Manish Kumarpal Shah, which reads as under: “Affidavit For Condonation Of delay in filing the Appeal No. ITA 2083/Ahd/2017 for Assessment year 2009-10
Manish Kumarpal Shah, Address: C/o. Trans Indiana Mfg. Co., Mahajan Lane, Raopura, Vadodara-390002 do solemnly affirm and state on oath as under:
That I preferred an Appeal before the Hon'ble Income Tax Appellate Tribunal, Ahmedabad Bench against the order passed by the Commissioner (Appeals)-lll, Baroda for Assessment year2009-10 vide Appeal No.CAB/llI/73/11-12 dated 07-02-2013.
The order was received by me on 25-03-2013 wherein learned Commissioner (Appeals) confirmed the addition under section 50C. I was under belief that the same is final and the consultant communicated to my office staff regarding filing of the second appeal. However, I did not receive such communication.
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This came to my notice when my other co-owners communicated to me regarding favourable appeal order in their case.
Considering the fact that in identical other cases, the addition is already substantially reduced, I believe that it would be fair to accept this appeal and condone the delay
I declare and affirm on oath that the delay in filing appeal is wholly unintentional and not with a view to obtain any benefit on account of such delay. I had no intention to jeopardize the interest of the revenue by delaying the filing of the Appeal.
VERIFICATION
I, Manish Kumarpal Shah, the above named deponent do hereby verify that the contents of para 1 to 3 are true to the best of my knowledge and belief.”
Stand of the ld.counsel for the assessee is that an immovable property was owned by number of owners and sold for a consideration of Rs.54.00 lakhs vide sale deed dated 28.4.2008. Each assessee got Rs.6.00 lakhs in their shares. The property was valued at Rs.1,54,08,163/- for the purpose of stamp valuation. Hence, for the purpose of computing long term capital gain assessable in the hands of the assessee the sale consideration with help of section 50C deemed equivalent to the amount on which stamp duty was paid. A sum of Rs.1,00,08,163/- was ought to be added in the hands of co-owners. In other words, a capital gain of Rs.11,12,018/- being 1/9th fallen to each assessee. When the AO confronted with the assessee as to why the sale consideration be not deemed to Rs.1,54,08,163/- under section 50C, then the appellants herein have not raised any objection, though dissatisfied with the computation made by the AO they went in appeal before the ld.CIT(A). Since, there was no explanation nor any plea for challenging the stamp duty valuation, the ld.CIT(A) has confirmed the addition. I
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deem it appropriate to make a mention that if an assessee was not satisfied with the stamp duty valuation, then under section 50C(2) of the Act, he can challenge that valuation either before the stamp valuation authority or before the AO, and if such request was being made, then AO will refer the matter to the DVO for determination of fair market value on the date of sale. Appellants before me have never raised any objection nor made any prayer for a reference to the DVO. They accepted the computation. Their appeals were decided on 7.2.2013. For a long time of 5 years, they have did not challenge the order of the ld.CIT(A) in their case. They have filed the present appeals by stating co-owners have disputed the valuation and matter was referred to the DVO, who has valued the property at Rs.55,94,230/- against the actual sale consideration of Rs.54,00,000/-. The assessees have come up before the Tribunal with prayer for condonation of delay on the ground that if in the case of co-owners lower sale consideration for computing the capital gain can be deemed as per section 50C, the same yardstick deserves to be adopted in their cases.
With the assistance of the ld.representatives, I have gone through the record carefully. Sub-section 5 of Section 253 contemplates that the Tribunal may admit an appeal or permit filing of memorandum of cross- objections after expiry of relevant period, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression “sufficient cause” employed in the section has also been used identically in sub- section 3 of section 249 of Income Tax Act, which provides powers to the ld.Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has
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fallen for consideration before Hon’ble High Court as well as before the Hon’ble Supreme Court, then, Hon’ble Court were unanimous in their conclusion that this expression is to be used liberally. I may make reference to the following observations of the Hon’ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji & Others, 1987 AIR 1353:
“1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
"Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”
Similarly, I would like to make reference to authoritative pronouncement of Hon’ble Supreme Court in the case of N.Balakrishnan Vs. M. Krishnamurthy (supra). It reads as under:
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“Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life- span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.”
I do not deem it necessary to re-cite or recapitulate the proposition laid down in other decisions. It is suffice to say that the Hon’ble Courts are unanimous in their approach to propound that whenever the reasons assigned by
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an applicant for explaining the delay, then such reasons are to be construed with a justice oriented approach.
In the light of the above, if I examine the explanation given by the assessee for condonation of delay, then it would reveal that hardly there is any explanation. They have accepted the computation of capital gain before the AO. They have not raised any objection at the level of AO, and then decided not to file appeal against the order of the ld.CIT(A). There is no plausible reason for condoning the delay of almost more than four years. The assessee ought to have vigilant for their rights. Therefore, I do not find any merit in their applications and therefore, all the applications for condonation of delay are rejected. Consequently, the appeals of the assessees are also dismissed.
As far as ITA No.2084/Ahd/2017 is concerned, it is an appeal against rejection of the assessee’s application under section 154 of the Act. The plea of the assessee is that capital gain be assessed in the hands of the assessee on the basis of DVO’s report called for in the cases of other co-owners. The ld.First Appellate Authority dismissed application of the assessee on the ground that no such material is available on the record of the assessee and there is no apparent error in the order of the ld.CIT(A).
With the assistance of the ld.representatives, I have gone through the record carefully. The power of rectification under section 154 of the Income Tax Act can be exercised only when the mistake which is sought to be rectified, is an obvious patent mistake, which is apparent from the record and not a mistake, which is required to be established by
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arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. Since no evidence is available before the ld.CIT(A) when the appeal of the assessee was decided on 7.2.2013. Orders in the case of other co-owners have come up subsequently on 14.4.2016. Therefore, on that date no apparent error was committed by the ld.CIT(A). To my mind, there was no material which can demonstrate that order of the ld.CIT(A) was suffering from an apparent error. Therefore, the ld.CIT(A) has rightly rejected the application of the assessee. In view of the above discussion, I do not find any merit in this appeal also.
In the result, appeals of the assessees are dismissed.
Pronounced in the Open Court on 6th May, 2019.
Sd/- (RAJPAL YADAV) JUDICIAL MEMBER Ahmedabad; Dated, 06/05/2019