RAMESH DHALUMAL ADVANI,MUMBAI vs. ITO, WARD 41(4)(3), MUMBAI, MUMBAI

Before us, the learned counsel submitted that the delay had occurred for reasons beyond the assessee’s control. In support, an affidavit has been filed stating that the notices as well as the assessment order were served at the assessee’s old address at Dheeraj Residency, Oshiwara, Andheri West, Mumbai, whereas the said property had already been sold vide registered sale deed dated 19.11.2009 and the assessee was no longer residing there. He came to know about the proceedings subsequently through the purchaser of the property and thereafter approached his tax consultant. Since the relevant documents were not readily available, the assessee had to obtain the sale agreement and connected documents from the purchaser and also procure the old purchase agreement dated 14.02.2002 and other records. It has also been stated that the assessee was about 65 years of age at the relevant time and, after collecting the requisite documents and obtaining professional advice, the appeal was filed.

After considering the rival submissions and the material available on record, we find that the explanation furnished by the assessee for the delay cannot be said to be unreasonable or lacking in bona fides. The assessment itself was completed ex parte under section 144 read with section 147, and the assessee’s explanation that the notices were sent to the address of the property which had already been sold in the year 2009 is supported by the affidavit filed before us. Thereafter, some time was consumed in procuring the relevant purchase and sale documents required for filing the appeal. Nothing has been brought on record to indicate that the delay was deliberate or that the assessee stood to derive any advantage by filing the appeal belatedly.

It is well settled that while considering an application for condonation of delay, what is material is whether sufficient cause has been shown and whether the conduct of the litigant is bona fide. The expression “sufficient cause” has to receive a pragmatic construction so that a genuine dispute is not shut out merely on account of a procedural delay, particularly where no deliberate negligence or mala fide conduct is discernible. Considering the explanation furnished by the assessee in the entirety of the facts and circumstances, we are satisfied that sufficient cause existed for the delay of 142

Coming to the consequential course to be adopted, we find that the assessment was framed ex parte and the Assessing Officer, on the basis of the material available with him, treated the amount of ₹32,00,000 received on sale of the immovable property as short-term capital gain. The assessee seeks to rely upon the purchase agreement dated 14.02.2002, the sale agreement and other connected documents, which admittedly could not be examined in the course of the assessment proceedings. Further, the learned CIT(A), having dismissed the appeal on limitation, has also not examined the controversy on merits. Thus, the relevant primary documents bearing upon the nature and taxability of the property transaction remain to be examined.

In these circumstances, instead of restoring the matter to the learned CIT(A), we consider it appropriate to restore the issue to the file of the Assessing Officer for fresh adjudication after examining the purchase agreement, sale agreement and other relevant documents and explanations which may be furnished by the assessee. The Assessing Officer shall afford adequate opportunity of being heard to the assessee and thereafter decide the issue afresh in accordance with law. We

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