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Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI RAJ KUMAR CHAUHAN
O R D E R PER RAJ KUMAR CHAUHAN (J.M.): 1. This appeal is filed by the appellant/assessee against the orders of Learned Commissioner of Income Tax (Appeals) / National Faceless Appeal Centre, Delhi [hereinafter referred to as the “CIT(A)”], passed under section 250 of the Income Tax Act, 1961 [hereinafter referred to as “the Act”] dated 11.02.2025 for the A.Y. 2013-14, wherein the addition made by the AO at Rs. 61,26,769/- was confirmed.
The brief facts of the case are that, the case of the assessee was re- opened u/s 147 of Act after issuing notice u/s 148 of the Act on 25.03.2021 after obtaining prior approval from the Ld. PCIT. In response to the said notice u/s 148 of the Act, the assessee filed the return of income on 26.03.2022. The assessee has filed the reply to the notice issued u/s 142(1) of the Act dated 17.08.2021 and 24.11.2021 explaining that assessee has purchased the property amounting to Rs. 90,45,000/-(indexed value of the payment amounts to Rs.1,32,53,831/-) which was paid from the year 2007-08 to 2012-13 and the stamp duty for the purchase of this property was Rs. 10,29,900/- and the assessee further sold the same property within 3 years for Rs. 1,05,00,000/- of which the stamp value amount is Rs. 2,04,40,500/-. The assessee has also earned salary of Rs. 56,07,608 /- during the year under consideration. After considering the reply of the assessee, the AO made an addition of Rs. 61,26,769/- (2,04,40,500 – 1,43,13,731) that is the difference between the stamp value of the sale price and the indexed
value of the purchase price and the said amount was added under short term capital gain of the assessee.
Aggrieved by the order of AO, assessee preferred the appeal before Ld. CIT(A) and Ld. CIT(A) has dismissed the appeal of the assessee ex-parte and confirmed the addition made by AO. Hence, the assessee is in appeal before us and has raised the following grounds of appeal:-
1.a. On the facts and in the circumstances of the case, the Id. CIT(A) erred in passing order ex-parte without considering the merits of the case, on the ground that appellant failed to substantiate the claim with supporting evidence.
2. The Id. CIT(A) erred in confirming the action of the assessing officer in treating the capital gain on sale of flat as short-term capital gain ignoring the fact that the flat was booked earlier and details of payments were filed and considered by assessing officer while allowing the indexed cost of acquisition.
3. The id. CIT(A) erred in confirming action of Assessing Officer in taking stamp duty value of Rs. 20440500/- in place of Sale Price of Rs. 10500000/- without referring matter to Valuation Officer, though prayer was made in Grounds of Appeal.
4. The appellant craves to add, alter, modify any ground of appeal before or at the time of hearing of appeal..
It is brought to our notice that there is delay of 105 days in filing the appeal before the Tribunal and assessee has filed an application for seeking condonation of delay alongwith affidavit and the same are extracted below:-
“Health Condition of Mother 19. I say that, during the material period, my mother's health started deteriorating. My mother, Naseem Banoo Mohammed Yusuf, was diagnosed with breast cancer during 2023. Therefore, I was completely occupied in taking care of her.
I say that, in the month of May 2025, her condition worsened and she was admitted in Breach Candy Hospital on 13.05.2025. She underwent a surgery for Breast Cancer on 14.05.2025 and was discharged on 21.05.2025. Thereafter, since it was a major surgery, her post operative care continued including chemotherapy and regular visits to the doctor. Annexed hereto as Annexure - '1' are the relevant medical papers.
I say that, on account of these reasons, I was under tremendous stress and was unable to devote full attention to any work, including accounts and tax related matters. FILING OF APPEAL BEFORE HON'BLE ITAT 22. I say that, it was only sometime during July 2025, when I met my C.A. Mr. Muddassir M. Ladiwala for the purpose of filing my income tax returns, he enquired me about the status of filing appeal before the Hon'ble Tribunal.
I say that, it was at that time I realized that the appeal has remained to be filed. With the help of my C.A. Mr. Muddassir M. Ladiwala, I approached C.A. Ashok Sharma in the month of August 2025.
I say that, thereafter, with the help of C.A. Ashok Sharma, immediately, on 13.08.2025, I filed an appeal before the Hon'ble Tribunal, with a delay of 105 [One Hundred and Five] days. Page | 4
I say that, for the above stated detailed reasons and circumstances, there was a delay in filing the appeal before the Hon'ble Tribunal.
I say that the delay is purely due to the circumstances beyond my control and, in any case, not due to any deliberate negligence or carelessness on my part. I further say that, there was no deliberate or willful non compliance on my part and the lapse, if at all, was totally unintended. In the past always careful and vigilant about tax proceedings.”
We have heard both the parties on the application for seeking condonation of delay. At the outset, Ld. AR on behalf of the assessee submitted that the delay in filing the appeal before the Tribunal was not intentional and the circumstances were beyond the control of the assessee because the mother of assessee was suffering from cancer during the relevant year and for this reason, the delay has been occurred. The assessee put reliance upon the judgment of the Hon'ble Supreme Court in the case of Collector, Land Acquisition Vs. MST. Katiji & Ors., [1987] 167 ITR 471 (SC), dated 19.02.1987, was pleased to hold regarding the condonation of delay as under:
“The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits”. The expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making of justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy.
And such a liberal approach is adopted on principle as it is realized that:
Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
2. 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.”
It is therefore, Ld. AR submitted that there is sufficient cause for condonation of delay and requested to condone the delay and the matter may be restored to the file of Ld. CIT(A) for fresh adjudication of the case.
Ld. DR on the other hand opposed the submission of Ld. AR and submitted that the assessee has failed to show sufficient cause for condonation of delay, therefore the appeal is liable to be dismissed.
We have considered the arguments of both the parties and examined the record. We notice that the assessee has filed an application for seeking condonation of delay alongwith affidavit stating that the mother of assessee was suffering from cancer and due to this reason, the assessee
has not filed the appeal within the time limit before the Tribunal. The assessee has also filed medical documents in support of his arguments and these averments have not been contradicted by the revenue. Since the assessee has filed affidavit in support of condonation of delay and no contradictory facts has been brought on record by the revenue to the effect that contents of the affidavit are false, we find it expedient in the interest of justice that the assessee has shown sufficient cause for condonation of delay in filing the appeal before us. Hence, the delay in filing the appeal is accordingly condoned.
Further on merit, it was argued on behalf of the appellant/assessee that the notice issued by the Ld. CIT(A) were never received or served upon the assessee and as such they could not present its case before the Ld. CIT(A) who proceeded ex parte and decided the appeal without giving effective opportunity of hearing to the assessee. Therefore, the impugned order suffers from illegality and liable to be set aside. The Ld. DR on the other hand supporting the judgment of the Ld. CIT(A) stating that there is no merit in the appeal and same is liable to be dismissed.
We have considered the rival submissions. Section 250 sub section 2(a) of "the Act" provides as under: Page | 7 “Section 250 (2) The following shall have the right to be heard at the hearing of the appeal: - a. The appellant, either in person or by an authorised representative;”
It is evident from the provision that the hearing to be given is not a formality but an effective hearing is sine qua non for the purpose of upholding the principal of natural justice. We have examined the impugned order and in para no. 4 of the Ld. CIT(A) observed as under: “4. During the course of appellate proceedings, the appellant was issued hearing notices u/s 250 of the Act on 16.11.2022 and 17.10.2023 requesting to furnish submission in support of grounds of appeal. No submission had been made in this regard. Further, opportunities to file submission in support of grounds of appeal were given to the appellant vide hearing notices u/s 250 of the Act dated 17.10.2024, 10.12.2024, 26.12.2024 and 13.01.2025. However, no submissions were made during the entire appellate proceedings. The appellant during the entire appellate proceedings did not comply with the notices and hence made no submission in support of grounds of appeal. So, it is held that the appellant had nothing more to submit except for raising the appeal against the addition made by the A.O.”
12. It is thus evident from the contents of the impugned order extracted above that no effective opportunity of hearing has been given and there is no proof that the notice sent on various dates were duly served or brought to the notice of the appellant/assessee. We have considered the above submissions and in the given facts as discussed above, we notice that Ld. CIT(A) has passed the impugned order without an effective representation of the assessee during the hearing which has resulted into miscarriage of justice.
13. For these reasons, we are of the considered opinion that matter needs to be restored to the file of the Ld. CIT(A) for deciding afresh after giving effective opportunity of hearing to the assessee who shall present its case before the Ld. CIT(A) within 60 days. The impugned order of Ld. CIT(A) is accordingly set aside and appeal filed by the assessee is allowed for statistical purposes in above terms.
In the result, appeal filed by the assessee is allowed for statistical purposes in above terms.
Order pronounced in the open court on 13.10.2025.