KAMAL SINGH,ARANDIYA BYPASS vs. OFFICE OF INCOME TAX OFFICER, 2(1)IND, AAYAKAR BHAWAN

Per Paresh M. Joshi, JM:

This is an Appeal filed by the Revenue under section 253 of

the Income tax Act 1961, [ herein after referred to as the Act

for the sake of brevity] before this tribunal. The Revenue is

aggrieved by the order bearing No:-ITBA/NFAC/S/250/2025-

26/1081757061(1) dated 15.10.2025 passed by the Ld.

CIT(A) u/s 250 of the Act which is hereinafter referred as the

“Impugned Order”. The Relevant Assessment Year is 2018- 19 and the corresponding Previous Period is from

01/04/2017 to 31/03/2018.

2.1 That as and by way of an Intimation Order made u/s 147

rws 144 of the Act, the total income of the assessee was

computed and assessed at Rs. 1,10,000,00/- [One crore ten

lakhs only]. No Income tax return was filed. An addition of Rs.

1,10,000,00/- was made o the account of “Short term capital

gain”. That the aforesaid assessment order bears No.

ITBA/AST/147/2022-23/1051016542(1) & that the same is

dated 20.03.2023 which is herein after referred to as the

“Impugned assessment order” for the sake of brevity.

2.2 In case of the Assessee there was an “AIR” information that

the assessee had sold an immovable property of Rs.

1,10,000,00/- during the year consideration. The assessee was a

non-filer. Therefore, the proceedings u/s 147/148 of the Act

were initiated against the assessee after taking prior approval

under the Act.

2.3 That a notice u/s 148 of the Act dated 27.03.2022 along with

order under section 148A(d) of the act dated 27.03.2022 was

issued & duly served upon the assessee. However, No ROI was

filed by the assessee in response to the said notice issued

u/s 148 of the act dated 27.03.2022. Notice u/s 142(1) dated

17.01.2023, 31.01.2022 were issued to the assessee calling for

the relevant information regarding the reported transaction. The

assessee in this regard was non-compliant. Notice u/s 144

dated 01.03.2023 was issued to which the assessee was non-

compliant too. The Ld. AO in the “Impugned assessment

order” held that the assessee had sold immovable property to

one “Khandelwal Brothers Indore” for the Rs. 1,10,000,00/- &

therefore a notice u/s 133(6) of the Act was issued to the said

purchaser who stated that immovable property was

purchased for Rs. One crore ten lakhs only. Therefore, though

the assessee had sold the immovable property for AY 2018-19

but had not filed any ROI & further no reply/explanation was

filed by him despite above stated opportunities. Hence the

“Impugned assessment order” was passed by the Ld. AO.

2.4 That the Assessee being Aggrieved by the aforesaid

“Impugned Assessment Order” prefers the first appeal u/s

246A of the Act before the Ld. CIT (A) who by the

“Impugned Order” has dismissed the first appeal of the

Assessee on the grounds & the reasons stated therein. The

core grounds & the reasons for the dismissal the first appeal

was as under:-

“Thus, to recapitulate the facts of the present

matter;

 it is a case of an ADMITTED INORDINATE

delay.

 Hence, in terms of the provisions of section

249(3) of the Act it was incumbent upon

the appellant to submit condonation

request/petition duly supported by relevant

details and evidences in respect of the

cause/s for such delay to substantiate that

such cause/s were sufficient cause/s for

requesting condonation.

 However, no such condonation petition had

been filed at the time of e-filing of the

present appeal, leave aside the aspect of

submitting causes for such delay.

 Hence, in the interest of natural justice

and fairness, during the course of present

appellate proceedings the appellant was

requested to substantiate his

request/claim for condonation of

ADMITTED INORDINATE delay in this case.

 But the appellant has chosen NOT to make

any submission in this respect.

 This is, inspite of the fact that appellant

himself in the FORM-35 had UNDERTAKEN

to make submission on condonation of

delay [relevant extracts of FORM-35 have

already been reproduced in earlier part of

this order].

 Thus, as a result, in this appeal filed with

an ADMITTED INORDINATE delay there is

no condonation petition and there is not even a single cause mentioned by the

appellant for such delay in filing the

present appeal, hence, the subsequent task

to examine if such cause/s can be

considered as "sufficient cause" as

contemplated in the provisions of section

249(3) of the Act is impossible to be taken

up.

 Resultantly, in absence of any cause being

mentioned for the ADMITTED INORDINATE

delay in filing this appeal, the same is

squarely hit by the provisions of section

249(3) of the Act and hence it CANNOT be

admitted for its due consideration on

merits of grounds/contentions/etc.

 Hence, to summarize, by no stretch of

imagination, it can be concluded that the

appellant, in facts and circumstances of

the present matter, has discharged the

statutory onus cast upon him in respect of

the admissibility of delayed appeal-which is explicitly required in terms of the

provisions of section 249(3) of the Act for a

successful condonation thereof. Under

such circumstances, the aforesaid appeal

cannot be considered for admission in

terms of provisions of section 249(3) and

accordingly, it is DISMISSED as NOT

ADMITTED, without any discussion on

merits or any other aspect, in-limine owing

to appellant's failure to discharge the

statutory onus cast upon him in terms of

the provisions of section 249(3) of the Act,

as detailed in this order. In the result, the

instant appeal is DISMISSED”.

2.5 That the Assessee being aggrieved by the “Impugned Order”

has preferred the Instant Second Appeal before this Tribunal &

has raised the following grounds of appeal in the form No: -36

against the “Impugned Order” which are as under: -

and law is erroneous.

total addition of Rs.1,10,00,000/- is contrary to

the weight of evidence provided on record,

perverse unjustified and therefore the addition is

liable to be struck down.

section 250 of the Income Tax Act, 1961, is ex-

parte in nature and has been made without

providing a fair and adequate opportunity of

being heard to the appellant. The order suffers

from a fundamental violation of the principles of

natural justice and is therefore bad in law and

liable to be set aside.

has committed a manifest error by neglecting to

consider the indexed cost of acquisition of the

property while computing the capital gains. As a

result, the entire sale consideration of

Rs.1,10,00,000/- has been erroneously treated as

taxable, without any deduction for the indexed

cost of acquisition, culminating in an inflated and unjust tax liability. Such an omission is

inequitable, unreasonable, and in blatant

contravention of the provisions of the Income Tax

Act.

and in facts in sustaining the assessment order

wherein the AO treated the gain arising from the

sale of immovable property as STCG, despite the

fact that the sale deed itself, which was on record

before the AO, clearly stated that the said

property was originally purchased on 30th March

2007. The failure to consider this material fact

and the consequent arbitrary treatment of the

transaction as a short-term capital gain, has led

to an unjust and excessive tax liability being

fastened upon the appellant. Such action, being

contrary to the evidentiary record and passed

without proper application of mind, amounts to a

violation of the principles of natural justice.

reinvested the proceeds from the sale of the property in the construction of a residential

property duly eligible for the exemption under sec

54F of the Income Tax Act, Therefore, the demand

raised by the Ld. CIT(A) is inherently void and

without merit, as it fails to take into account the

rightful exemption available under the

aforementioned section.

account for the TDS credit of Rs.1,10,000, duly

deducted by M/s Khandelwal Brothers, which

should have been factored into the tax

computation. This omission on the part of the

Assessing Officer has resulted in an erroneous and

unjust demand, despite the appellant's rightful

entitlement to the TDS credit, which the Ld. CIT(A)

has blatantly disregarded.

any of the grounds of appeal on or before the date

of hearing.

3.1 The hearing in the matter took place before this Tribunal on

22/10/2026, when the Ld. AR for and on the behalf of the

Assessee appeared before us & Interalia contended that the

"Impugned Order” is bad in law, illegal & not Proper. It is in the

violation of the principles of natural justice. It therefore deserves

to be set aside.

3.2 The Ld. AR has placed on the record of this Tribunal a PB

containing pages 01 to 11 dated 16.06.2026 in support.

3.3 The Ld. AR then submitted that “Impugned Assessment

Order” is u/s 144 of the Act. The assessee had sold

agricultural land for one crore ten lakhs. It is case which

pertains to the sale of the agriculture land. That by a notice

u/s 226 dated 14.01.2025 the revenue has frozen the

assessee’s bank account with HDFC Bank, South Tukoganj,

Indore, MP PB page 9 to 10. That by a letter dated

28.03.2025 PB page 11 the assessee has requested for orders

u/s 148A, 148 rws 144, 270A, 272(A)1(d) from 170 2(1)

Indore & has further sought all case records of his case. That

on 01.06.2025 the window on the ITBA Portal was opened by CIT(A) office which was followed by a notice dated

07.10.2025 calling upon the assessee to file a petition for

the condonation of delay with regard to the admissibility

of first appeal. However, no notice u/s 250 was issued to

the assessee prior to adjudication of the first appeal on

merits or on the question of limitation. Immediately the

thereafter on 15.10.2025 the "Impugned Order” was passed,

which was received by the assessee on 17.10.2025. The Ld. AR

Submitted that within 09 days if reckoned from 07.10.2025 the

"Impugned Order” dated 15.10.2025 was passed. Hence the

assessee was not given a reasonable time to even file

condonation of delay application before first appellate

authority & hence the "Impugned Order” is bad in law & in the

violation of the principles of natural justice & that same should

be set aside & matter should now be remanded back to the file of

Ld. AO for denovo adjudication. Per contra Ld. Sr. DR appearing

for the revenue fairly conceded that the Ld. CIT(A) ought to have

given more time & ought to have waited for a reasonable time to

enable the assessee to upload at least the condonation of delay

application. The Ld. Sr. DR finally relied upon the "Impugned

Order” & left it to the wisdom of this Tribunal to take an appropriate call on second appeal. The hearing was then over &

closed.

4.1 We have to decide the legality, validity and the proprietary of

the “Impugned Order” basis records of the case & the rival

submissions canvassed before us.

4.2 We have carefully perused the records of the case and have

heard the submissions.

4.3 We basis records of the case & after hearing & further upon

examining the rival contentions of the Ld. AR & Ld. DR

canvassed before us are of the considered opinion that the

“Impugned Assessment Order” is under section 144/147

of the act and the matter has not been adjudicated &

adjudged basis merits. Even the "Impugned Order” is not

on Merits. This Tribunal desires that the total income of the

assessee should be computed and assessed on real time

basis exigible to tax in accordance with law by following due

process of law under the Act. This Tribunal also expects the

assessee to be complaint & should cooperate with the Department as & when notices, etc. are issued. In brief this

tribunal desires the meritorious disposal of both the

"Impugned Assessment Order” the as "Impugned Order".

The Assessee’s cooperation in this regard assumes

importance. The Assessee cannot go in slumber mode. In

the Result we are of the considered opinion that the

"Impugned Order" should be set aside & the matter should

be remanded the back to the file of the Ld. AO for passing a

fresh order on merits of the case. It is the expectation of this

Tribunal that the Assessee would give his full & complete

details including, latest e-mails of his & and his counsel

were the notices could be served effectively by the

Department. The Assessee to attend hearings as & when

fixed & file reply & details as sought by the Ld. AO.

4.4 We additionally hold that facility to make condonation of

delay application is already provided for in column no. 15 of

from no. 35 [first appellate authority] and assessee ought to

have exercised that option instead of stating that condonation of

delay would be provided at the time of hearing. Such an approach of the assessee is condemnable & assessee is

cautioned in this regard. Assessee by such act, omission,

commission has led to an ex-parte dismissal on time barred first

appeal which has led to a docket explosion before Ld. CIT(A). The

assessee is advised to follow good practice.

4.5 In view of the above, we set aside the “Impugned Order” &

remand the case back to file of the Ld. AO on de novo basis, who

shall now pass a speaking & well-reasoned order.

5 Order

5.1 In the result the “Impugned Order” is set aside as and by

way of remand back to the file of the Ld. AO. We however notice

that “Impugned Assessment Order” was received by the

assessee on 20.03.2023 & first appeal was filed on 12.05.2023

keeping mind a small amount of delay we condone the delay

before the Ld. CIT (A) as we want meritorious disposal by Ld. AO

at the very first instance.

5.2 In the result the appeal of the Assessee is allowed for

Statistical Purpose.

Pronounced in open court on 30.10.2026.

Sd/- Sd/- (ARVIND SONI) (PARESH M. JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER Indore िदनांक/Dated : 30/10/2026

Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File

Akhilesh Kumar Digitally signed by Akhilesh Kumar Date: 2026.11.02 17:42:19 +05'30'

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