SHRI ISHVARJI BECHARJI VAGHELA,GANDHINAGAR vs. INCOME TAX OFFICER WARD 1, GANDHINAGAR

The assessee raised the following grounds of appeal:- “1. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals) erred in not condoning the delay in filing the first appeal and in dismissing the appeal in limine, without appreciating that the delay had occurred due to bona fide and sufficient cause.

On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in passing the impugned order without affording effective and meaningful opportunity of being heard, thereby violating the principles of natural justice.

On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in dismissing the appeal on merits as well, after rejecting it on technical grounds, without properly examining the material already placed on record, including the valuation report and additional evidence disclosed in Form No. 35.

On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in upholding the assessment made under section 147 r.w.s. 144, wherein the Assessing Officer had treated the entire 1/3rd share of sale consideration as short-term capital gain without proper computation in accordance with law.

On the facts and in the circumstances of the case and in law, the learned CIT(A) failed to appreciate that the impugned addition was made without considering the cost of acquisition, fair market value as on 01.04.2001, and cost of improvement, and therefore the computation of capital gains is erroneous and unsustainable.

Without prejudice to the above, the learned CIT(A) ought to have restored the matter to the file of the Assessing Officer for fresh adjudication after considering the material on record, instead of dismissing the appeal on technical grounds.

The Appellant craves leave to add, alter, amend, or withdraw any of the above Grounds of Appeal at the time of hearing. Prayer: - The Appellant therefore prays that the delay in filing the appeal before the Hon'ble Tribunal may kindly be condoned, the impugned order passed by the learned CIT(A) be set aside, and the matter be restored for fresh adjudication in accordance with law after proper consideration of the material on record; or, in the alternative, such relief on merits be granted as this Hon'ble Tribunal may deem fit.”

Aggrieved by addition, assessee filed the appeal. As there was non-compliance during appeal proceedings, CIT(A) dismissed the appeal for want of prosecution and held the same as non-maintainable on merits also rejecting the request for condonation.

Aggrieved by the order of CIT(A), assessee filed the appeal with a delay of 105 days. Assessee submitted that his email address was that of external consultant and was not operated by the appellant. Only when recovery action was initiated, assessee came to know of passing of orders in his case. He requested for condonation of delay. In the interest of justice, delay is condoned.

We have heard both the parties and perused the materials available on record. Admittedly, assessee did not file return of income for the relevant assessment year. AO arrived at the sale consideration and assessee’s 1/3rd share in the property

In the result, appeal is allowed for statistical purpose.