GAJANAN MOTIRAM PATIL,KALYAN vs. INCOME TAX OFFICER WARD 3(1), KALYAN, KALYAN

On the facts and circumstances of the case and law, the Ld.CIT(A) erred in dismissing the appeal without condoning delay and without adjudicating the grounds of appeal on merits.

On the facts and circumstances of the case and law, the Ld.CIT(A) erred in confirming the action of Ld AO in issuing notice under section 148 of the Income Tax Act, 1961. 3. On the facts and circumstances of the case and law, the Ld CIT(A) erred in confirming the action of Ld AO in initiating reassessment proceedings for verification of investment under section 147 of the Income Tax Act, 1961 which is bad in law and required to be quashed

On the facts and circumstances of the case and law, the Ld CIT(A) erred in confirming the action of Ld AO in charging of capital gains of Rs. 2,56,21,250/- in the Assessment Year 2012-13, even though development agreement was executed on 20.02.2008 relevant to assessment year 2008-09 and hence no capital gains accrued in the Assessment Year 2012-13. 5. Without Prejudice to ground No 4, on the facts and circumstances of the case and law, the Ld CIT(A) failed to consider that the provisions of section 50C of the Income Tax Act, 1961 is not applicable on the Development Agreement.

Without Prejudice to ground No 4, on the facts and circumstances of the case and law, the Ld CIT(A) failed to consider that as per the assumption of Ld AO if the cost of the asset is absent then, no capital gain could be computed as the computation mechanism as provided in section 48 of the Income Tax Act, 1961 gets failed in the absence of cost

On the facts and circumstances of the case and law, the Ld CIT(A) erred in confirming the action of Ld AO in confirming the addition of Rs. 45,00,000 under section 69 of the Income Tax Act, 1961 even though the source of the investment was fully explainable.

On the facts and circumstances of the case and law, the Ld.CIT(A) erred in charging interest u/s 234A, 234B and 234C of Income Tax Act, 1961. 3. Brief facts of the case are that the assessee filed return of income declaring total income of Rs. 8,99,260/-. Information was received by the AO that the assessee had purchased an immovable property on 28.03.2012 for a consideration of Rs. 45,00,000/- .It was P a g e | 3 A.Y. 2012-13 Gajanan Motiram Patil further found that he along with another other co-owners, had sold an immovable property on 11.10.2011 for a consideration of Rs. 5,12,42,500/- during the relevant year. However, the capital gains arising out of the said transaction had not been offered for taxation by filing return of income and offering the income. No return was filed in response to the notice u/s 148 of the Act as well. In absence of any compliance by the assessee, the AO treated the sale consideration as long term capital gains and the investment of Rs 45 lakh was added u/s 69 of Act as Unexplained investment.

Aggrieved, the assessee filed appeal before the ld.CIT(A) who noticed that it was delayed by 760 days. In this regard, it was contented that the assessee was only a 12thpass law abiding Indian citizen and was regularly assessed to tax and not well conversant about the complicated tax compliances and with the computer operations and online proceedings. For all the compliances, the appellant was totally dependent on the services of his tax consultant. The Assessment order was passed on 17.12.2019 during the outbreak of COVID-19. During pandemic period, he was actively involved in pandemic relief work for his relatives and public of his locality. The Hon’ble Supreme Court also in suo motu Writ Petition (C) No. 3 of 2020 [In Re: Cognizance for Extension of Limitation] had extended the appeal filling limitation

However, the ld.CIT(A) observed that for a considerably long period, the assessee did not file the appeal which clearly indicated that he was deliberately doing the same for the reasons best known to him. He had failed to explain the delay attributable to the filing of appeal pre-

Before us, the ld.AR has pleaded for condonation of the above delay and restoring the entire matter to the file to the lower authorities. An affidavit of the assessee in respect of the delay in filing of the appeal before the ld.CIT(A) has also been filed inter alia submitting that the delay was attributed to several reasons including covid pandemic. He reiterated the same contentions as made before the appellate authority. It was submitted that on substantial effort and after repeated follow-ups, the requisite documents were collected from old records and other available sources to the newly appointed tax consultant. Consequently, the appeal could ultimately be filed on 29.06.2024.It is also stated that similar delays were condoned by the ITAT as per details below:

On careful consideration of the submissions of the assessee, we are of the view that the delay was not completely intentional but due to certain unavoidable reasons which could not be accepted as bonafide. In this connection, reliance could be placed on the landmark decision of hon’ble Supreme Court which inter alia held in Collector, Land Acquisition v Mst. Katiji And Others- 167 ITR 471 (SC) that “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….Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period…. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk.” Considering the principles of natural justice, we therefore, condone the delay in fling of the appeal before the appellate authority.

1. However, it is equally true that it is the fundamental duty of the assessee to diligently pursue the appeal and comply with the notices and proceedings initiated by the Revenue authorities. The framework of the Act and the e-proceedings system rely heavily on the co-operation and active participation of the taxpayer. The failure of the assessee to take timely action reflects gross negligence and indifference. The principles of natural justice operate both ways, while the Revenue authorities are required to provide a reasonable opportunity of being heard, the taxpayer is equally obligated to co-operate with the authorities and utilize the opportunities extended. In light of such non- compliant attitude of the assessee, levy of cost needs to be evaluated in this case as cost serves as a necessary deterrent to ensure that taxpayers

2 As the ld. AR has requested before us that the assessee may be given one more opportunity and this request which was not objected by the ld.DR, in such a scenario, we are of the opinion that the scales of justice demand that the matter should be verified and revisited at the level of ld. CIT(A) and accordingly, we are of the considered view that the matter should be remanded back to the file of ld. CIT(A) for de novo adjudication on merits of the case by him while applying the principles of natural justice after affording sufficient opportunity of being heard to the assessee.

3 Moreover, considering assessee’s non-compliant attitude and lack of diligence in pursuing the appeal, we impose a cost of Rs.50,000/- on him (Rs. Fifty Thousand only). The cost shall be deposited to the Prime Minister’s Relief Fund within 15 days of the receipt of this order and proof of payment shall be submitted before the ld.CIT(A). The deposit of costs is a condition precedent for restoration of appeal to the file of the ld.CIT(A).

In the result, the appeal stands allowed for statistical purposes with cost.

Mumbai 5. गार्ड फाईल / Guard file. सत्यावपि प्रवि //// आदेशानुसार/ BY ORDER,