NANDU ARJUN SHELKE,PUNE vs. INCOME TAX OFFICER WARD 8 (3), PUNE

Brief facts of the case are that the assessee is an individual and stated to be a farmer. For the year under consideration, assessee has not filed return of income. Case of the assessee reopened for scrutiny based on the information that assessee has sold an immovable property for Rs.73,50,000/-. Notice u/s.148 of the Act was issued after obtaining approval of the competent authority. In response to the show cause notice, assessee furnished the submissions. However, ld. Assessing Officer was not satisfied with the reply submitted by the assessee and made addition of Rs.68,50,000/- as short term capital gain. He also made an addition of Rs.12,248/- as undisclosed interest income. Aggrieved assessee preferred appeal against the additions but with delay of 126 days which has not been condoned by ld.CIT(A) resulting into dismissal of appeal in limine without discussing anything on merits of the case. Now the assessee is in appeal before this Tribunal assailing the impugned order passed by ld.CIT(A).

Before us, at the time of hearing, ld. Counsel for the assessee submitted that admittedly there was delay of 126 days before ld.CIT(A) and the assessee has furnished explanation stating that he was not having any taxable income and not well conversant with the intricacies of the Income tax procedures. Further, he is not registered on the income-tax portal and hence unaware of the notices and could not comply with the notices sent by ld.CIT(A). Delay is unintentional and only due to lack of familiarity with relevant procedure.

1 On merits, ld. Counsel for the assessee submitted that the property in question allegedly sold by the assessee is incorrect as the possession of immovable property is still with the assessee He further submitted that the property is in litigation and pending before the Civil Court and therefore transfer is not completed as the essential conditions of section 2(47)(v) rws 53A of the Act remains unfulfilled. Further assessee has not received any consideration from the alleged purported transaction. He further submitted that there was no effective representation before the ld. Assessing Officer and ld. AO passed Best Judgment assessment making huge addition when actually no consideration has been received by the assessee. Therefore, a prayer is made to condone the delay before ld.CIT(A) as ‘reasonable cause’ exists in the case of assessee and restore the issues to the file of ld. Juri ictional Assessing Officer for afresh adjudication so as to substantiate the case on merits.

On the other hand, ld. DR supported the order of ld.CIT (A).

We have heard the rival submissions and perused the record placed before us. On perusal of the assessment order as well as First Appellate order, we find that both the orders are exparte qua assessee as there was no participation by the assessee before the lower authorities. Further, ld.CIT(A) has not condoned the delay in filing of appeal.

The Hon'ble Supreme Court in catena of decisions unequivocally laid down that when an explanation regarding delay does not smack of malafides and is otherwise reasonable acceptance ought to be the rule and refusal an exception. A hyper-technical or pedantic approach, resulting in the dismissal of matters at the threshold, is discouraged as it may cause irreparable prejudice by foreclosing adjudication on merits. The expression "sufficient cause" occurring in limitation statutes has consistently been interpreted to receive a liberal and justice- oriented construction, so as to advance rather than defeat the cause of substantial justice. At the same time, the delay should neither be intentional nor for taking any undue benefit by the assessee. If the reasons explained by the assessee are bonafide and there is no element of deliberate delay or taking undue advantage in filing the appeal belatedly, then the concept of liberal interpretation must be applied while considering the sufficient cause for delay in filing the appeal.

On due consideration of the reply furnished by the assessee before ld.CIT(A), I find that due to ‘reasonable cause’ assessee could not file appeal before ld.CIT(A) within the stipulated time. Therefore, 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. Needless to mention that ld.JAO in the set aside proceedings shall provide reasonable opportunity of hearing to the assessee and consider the documents/evidences to be filed by the assessee. Assessee is directed to update email and contact details 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.JAO shall be free to proceed in accordance with law. Impugned order is set aside and effecrtive grounds of appeal raised by the assessee are allowed for statistical purposes.

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

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