BALU SHIRAM DHORE,PUNE vs. INCOME TAX OFFICER WARD 9(3), PUNE

The sole grievance of the assessee is that ld.CIT(A) erred in confirming the addition for long term capital gain at Rs.1,30,35,937/-.

At the outset, ld. Counsel for the assessee submitted that assessee has raised legal issue stating that reassessment proceedings are invalid as the notice u/s.148 of the Act is barred by limitation. He submitted that first notice u/s.148 of the Act was issued on 24.05.2022 to which the assessee could not respond and the compliance period expired on 09.06.2022. The surviving period as per the ratio laid down by the Hon’ble Apex Court in the case of UOI vs. Rajeev Bansal [2024] 167 taxmann.com 70 was 26 days and therefore notice u/s.148A(d) and u/s.148 have been issued latest by 05.07.2022 but the impugned notice has been issued on 25.07.2022. He however fairly conceded that this issue was not specifically raised before ld.CIT(A) as the assessee’s appeal has been dismissed in limine being barred by limitation by about 17 months. Ld. Counsel for the assessee submitted that reasonable cause prevented the assessee in filing of the appeal before ld.CIT(A) within the prescribed time limit and mainly due to illness of the assessee and also time taken to collect the documents, there is delay and the same may please be condoned. Apart from the legal issue an alternate submission was made that the matter may please be restored to the file of ld.CIT(A) for necessary adjudication of the issues raised in the instant appeal.

On the other hand, ld. DR opposed the request made by ld. Counsel for the assessee.

We have heard the rival submissions and perused the record placed before us. We observe that the assessee is an individual and did not file the regular return of income. Based on the information about sale of immovable property notice u/s.148 of the Act has been issued during Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 (TOLA) period and subsequently notices have been issued in light of judgment of Hon’ble Apex Court in the case of Union of India v. Ashish Agarwal (2022 SCC Online SC 543) re-assessment proceedings were carried out and addition for long term capital gain at Rs.1,30,35,937/- has been made. Income assessed at 1,30,35,940/-. We note that the assessee in response to notice u/s.142(1) of the Act did not file any return of income and subsequently assessee preferred appeal before ld.CIT(A) but assessee’s appeal was dismissed as barred by limitation by 17 months. Application for condonation of delay was filed explaining the delay before ld.CIT(A) along with supporting documents relating to medical treatment of the assessee at Harneshwar Multi Speciality Hospital have been furnished. Assessee has also raised legal issue challenging the validity of notice u/s.148 of the Act.

There is no dispute that u/s.253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there exists a ‘sufficient cause’ on the part of the assessee for not presenting the appeal within the prescribed time.

The important point is as to whether such a delay deserves condonation. At this stage, we take note of the judgment of the Hon’ble Bombay High Court in Vijay Vishin Meghani Vs. DCIT & Anr (2017) 398 ITR 250 (Bom) wherein the Hon’ble Court held that none should be deprived of an adjudication on merits unless it is found that the litigant deliberately delayed the filing of appeal. In that case, delay of 2984 days crept in due to improper legal advice. Relying on Concord of India Ins. Co. Limited VS Nirmala Devi (1979) 118 ITR 507 (SC), the Hon’ble juri ictional High Court condoned the delay.

We have carefully examined the reasons for condonation of delay as well as the explanation tendered by the assessee along with supporting documents thereof. Upon a comprehensive appraisal of the facts, we find that the delay cannot be attributed either to deliberate inaction or to any lack of bona fides on the part of the assessee. The circumstances explained demonstrate that the default occurred due to reasons beyond the assessee's control and not on account of any negligence, or want of diligence. In our considered view, assessee has satisfactorily established the existence of "sufficient cause" for the delay in preferring the appeal before the First Appellate Authority. Adopting justice oriented approach and placing reliance on the judgments of Hon’ble Apex Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. reported in (1987) 2 SCC 107 and in the case of Inder Singh Vs. State of Madhya Pradesh judgment dated 21.03.2025 (2025 INSC 382), we condone the delay before ld.CIT(A).

Considering all these facts and the prayer made by ld. Counsel for the assessee, we deem it appropriate to remit back all the issues raised in the instant appeal to the file of ld.CIT(A) for necessary adjudication of the issues. Needless to mention that ld.CIT(A) shall provide reasonable opportunity of hearing in the set aside proceedings and pass a speaking order as contemplated u/s.250(6) of the Act in light of judgment of Hon’ble Bombay High Court in the case of Pr.CIT (Central) Vs. Premkumar Arjundas Luthra (HUF) Bombay)/[2017] 297 CTR 614 (Bombay). Assessee is directed to update email and contract detail on the ITBA portal. Assessee is also directed to remain vigilant and not to take adjournment unless otherwise required for reasonable cause, failing which the ld. CIT(A)/NFAC shall be free to proceed in accordance with law. Finding of the CIT(A)/NFAC is set aside and Grounds of appeal raised by the assessee are allowed for statistical purposes.

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

The Pr. CIT concerned. विभ गीय प्रतितनधि, आयकर अपीलीय अधिकरण, “A” बेंच, 4. पुणे / DR, ITAT, “A” Bench, Pune. ग र्ड फ़ इल / Guard File. 5. आिेश नुस र / BY ORDER, ////