BERNARDO BORGES ,MUMBAI vs. INCOME TAX OFFICER, WARD 34(1)(1) , MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH MUMBAI BEFORE SHRI SAKTIJIT DEY, VICE PRESIDENT & SHRI MAKARAND VASANT MAHADEOKAR, ACCOUNTANT MEMBER ITA No. 4523/Mum/2026) (Assessment Year: 2015-16) & S.A. No. 93/Mum/2026 (Arising out of ITA No. 4523/Mum/2026) (Assessment Year: 2015-16) Mr. Bernardo Borges ITO Ward 21 Zahid Manzil, 3rd 34(1)(1)/NFAC floor, Juhu Tara Road, Vs. Room No. 230, 2nd KKG Marg, Santacruz Floor, Kautilya West, Mumbai-400 049 Bhavan, C-41 to C-43, G Block, Bandra Kurla Complex, Bandra East, Mumbai-400 051 PAN/GIR No. AEBPB0112P (Applicant) (Respondent) Assessee by Shri Bhupendra Pathak, Ld. AR Revenue by Shri S. G. Menon, Ld. DR Date of Hearing 03.07.2026 Date of Pronouncement 08.07.2026 आदेश / ORDER PER MAKARAND VASANT MAHADEOKAR, AM: This appeal by the assessee is directed against the order dated 06.01.2026 passed by the learned CIT(A), NFAC, Delhi

2 ITA No. 4523/Mum/2026 & SA No. 93/Mum/2026 Mr. Bernardo Borges [hereinafter referred to as "the CIT(A)"] under section 250 of the Income Tax Act, 1961[hereinafter referred to as "the Act"], for A.Y. 2015-16. The stay application filed by the assessee arises out of the very same appeal and seeks stay of recovery of the outstanding demand and consequential relief against recovery action. Since both matters arise from the same assessment proceedings, they were heard together and are being disposed of by this common order. Condonation of Delay 2. At the outset, it is noticed that the appeal filed before us is barred by limitation by 18 days as recorded by the registry (42 days as mentioned by the assessee in the affidavit). In the said affidavit, the assessee has stated that he is about 71 years of age and that the delay in filing the present appeal was entirely unintentional and not by way of any dilatory tactic. It has further been stated that, being a technologically unsavvy senior citizen, he had relied upon his erstwhile accountant, who was handling the Income Tax e-filing portal, email and mobile number registered on the portal, and that the said accountant failed to inform him about the order dated 06.01.2026 passed by the learned CIT(A). The assessee has further deposed that he acquired actual knowledge of the adverse order and the impending recovery only on or about 23.03.2026, when his banker informed him that his operational bank account had been debit-frozen pursuant to recovery proceedings under section

3 ITA No. 4523/Mum/2026 & SA No. 93/Mum/2026 Mr. Bernardo Borges 226(3) of the Act. The affidavit also records that, to demonstrate his bona fides, the assessee had already deposited an aggregate amount of approximately Rs. 13,22,736/-, stated to constitute 20% of the disputed demand, and that the freezing of the bank account caused financial hardship and difficulty in meeting daily sustenance and medical needs in old age. 3. The learned Authorised Representative (AR), referring to the aforesaid affidavit, submitted that the delay was neither deliberate nor wanton, but had occurred due to bona fide circumstances beyond the effective control of the assessee. He submitted that immediately upon gaining knowledge of the adverse order and recovery action, the assessee took steps to file the appeal before the Tribunal along with the application for condonation of delay and stay application. The learned Departmental Representative did not raise any objection to condonation of delay in filing the appeal before the Tribunal. Having considered the facts stated in the application and the affidavit, the age of the assessee, the circumstances in which knowledge of the order is stated to have been received, the prompt steps taken thereafter, and the no-objection fairly stated by the learned Departmental Representative (DR), we are satisfied that the assessee was prevented by sufficient cause from filing the appeal within the prescribed period. Accordingly, the delay in filing the appeal before us is condoned under section 253(5) of the Act and the appeal is admitted for adjudication.

4 ITA No. 4523/Mum/2026 & SA No. 93/Mum/2026 Mr. Bernardo Borges Facts of the Case 4. Briefly stated, the assessee is an individual. The assessment was reopened on the basis of information that the assessee had sold two properties for Rs. 40,00,000/- each during F.Y. 2014-15 and had not filed return of income for A.Y. 2015-16. After recording reasons and passing order under section 148A(d), notice under section 148 dated 09.04.2022 was issued. Thereafter, the Assessing Officer passed assessment order dated 13.02.2024 under section 147 read with section 144B of the Act. The Assessing Officer observed that the assessee had not satisfactorily established that he was only a Power of Attorney holder and that the sale consideration received in his bank account had been passed on to the actual owners. Accordingly, the Assessing Officer treated the entire amount of Rs. 80,00,000/- as short-term capital gain in the hands of the assessee and determined total income at Rs. 82,44,145/-. 5. Aggrieved, the assessee preferred appeal before the learned CIT(A). The learned CIT(A) noted that the appeal against the assessment order dated 13.02.2024 was filed on 09.10.2024, with a delay of 208 days. The assessee had sought condonation of delay by stating that he was a senior citizen, was suffering from old-age related difficulties, was mostly residing at his native place, was not conversant with the Income Tax portal and the order was not served at his residential address. The learned CIT(A), however, was not satisfied with the explanation and

5 ITA No. 4523/Mum/2026 & SA No. 93/Mum/2026 Mr. Bernardo Borges dismissed the appeal in limine without adjudicating the grounds on merits. 6. The assessee has also filed stay application stating that recovery proceedings were initiated pursuant to the demand arising from the assessment and penalty proceedings. The assessee has sought stay of demand and lifting of bank attachment under section 226(3). The stay application is supported by affidavit and proceeds on the same broad facts, namely that the assessee was only a Power of Attorney holder and that the appeal before the learned CIT(A) came to be dismissed without adjudication on merits. 7. Before us, the learned AR reiterated the facts of the case. He submitted that the assessee is a senior citizen and the delay before the learned CIT(A) was neither intentional nor deliberate. It was submitted that the assessee has a strong arguable case on merits since, according to him, he was only a Power of Attorney holder in respect of the property transaction and not the beneficial owner of the property. It was further submitted that the learned CIT(A) has dismissed the appeal as non-maintainable and has not adjudicated the issues arising from the assessment order. The learned AR, therefore, prayed that the delay may be condoned and the matter may be restored to the file of the learned CIT(A) for fresh adjudication on merits. 8. The learned DR, on the other hand, fairly submitted that if the matter is restored to the file of the learned CIT(A) for

6 ITA No. 4523/Mum/2026 & SA No. 93/Mum/2026 Mr. Bernardo Borges adjudication on merits, the Revenue has no serious objection, provided the assessee is directed to cooperate in the appellate proceedings. 9. We have heard the rival submissions and perused the material placed before us. It is evident from the impugned order that the learned CIT(A) has not adjudicated the grounds of appeal on merits and has dismissed the appeal at the threshold on the ground of delay. The issues raised by the assessee, particularly whether the amount of Rs. 80,00,000/- could be assessed in the hands of the assessee as short term capital gain, whether the assessee acted only as a Power of Attorney holder, and whether the reassessment proceedings were validly initiated, are issues which require examination on facts and in law. These issues have not been adjudicated by the learned CIT(A). 10. Considering the facts of the case, the age of the assessee, the explanation placed on record by way of affidavit, and the fact that the learned DR has raised no objection to restoration of the matter, we are of the considered view that the delay in filing the appeal before the learned CIT(A) deserves to be condoned in the interest of substantial justice. No prejudice would be caused to the Revenue if the matter is restored to the learned CIT(A), since the Revenue will have full opportunity to support the assessment order before the first appellate authority. On the other hand, if the delay is not condoned, the assessee would be deprived of adjudication of the appeal on merits.

7 ITA No. 4523/Mum/2026 & SA No. 93/Mum/2026 Mr. Bernardo Borges 11. The assessee is directed to remain vigilant, comply with notices issued by the learned CIT(A), file all relevant documentary evidence and written submissions within the time granted, and not seek unnecessary adjournments. We make it clear that we have not expressed any opinion on the merits of the addition, validity of reassessment, admissibility of any additional evidence, or any other issue arising in the appeal. All contentions of both sides are left open.

Order pronounced in the open court on 08.07.2026.

Sd/- Sd/- (SAKTIJIT DEY) (MAKARAND VASANT MAHADEOKAR) VICE PRESIDENT ACCOUNTANT MEMBER Mumbai, Dated 08/07/2026 Dhananjay, Sr.PS

8 ITA No. 4523/Mum/2026 & SA No. 93/Mum/2026 Mr. Bernardo Borges आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : अपीलार्थी / The Appellant 1. प्रत्यर्थी / The Respondent. 2. संबंधित आयकर आयुक्त / The CIT(A) 3. आयकर आयुक्त(अपील) / Concerned CIT 4. धिभागीय प्रधतधिधि, आयकर अपीलीय अधिकरण, मुम्बई / DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. 6. आदेशानुसार/ BY ORDER, सत्याधपत प्रधत //True Copy// 1. उि/सहायक िंजीकार ( Asst. Registrar) आयकर अिीिीय अतिकरण, मुम्बई / ITAT, Mumbai