LATE SHRI. KASAM NURMAD KARADIYA,JOGESHWARI, MUMBAI vs. INCOME TAX OFFICER, WARD 41(4)(2), MUMBAI, MUMBAI
IN THE INCOME-TAX APPELLATE TRIBUNAL “E” BENCH,
MUMBAI
BEFORE SHRI SAKTIJIT DEY, VICE PRESIDENT
&
SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER
Late Shri Kasam Nurmad
Karadiya
(Through his legal heir Shri Rahemtullah Kasambhai
Karadiya) 804, Anand Co-op
Hsg
Society,
Behram
Baug
Road,
Jogeshwari
West,
Mumbai–400102, Maharashtra v/s.
बनाम
Income Tax Officer, Ward –
41(4)(2), Kautilya Bhavan,
Avenue
3, near
Videsh
Bhavan,
G
Block
BKC,
Bandra
Kurla
Complex,
Bandra (East), Mumbai –
400051, Maharashtra
स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AAHPK5855E
Appellant/अपीलार्थी
..
Respondent/प्रतिवादी
Appellant by :
None. Paper book on record.
Respondent by :
Shri Hemanshu Joshi, Sr. DR
Date of Hearing
17.07.2025
Date of Pronouncement
04.08.2025
आदेश / O R D E R
PER PRABHASH SHANKAR [A.M.] :-
The present appeal is filed by the assessee against the order passed by the Learned Commissioner of Income-tax (Appeals)/National
Faceless Appeal Centre, Delhi [hereinafter referred to as “CIT(A)”]
pertaining to assessmentorder passed u/s. 143(3) r.w.s. 147 of the Income-tax Act, 1961 [hereinafter referred to as “Act”] dated 06.12.2017
for the Assessment Year [A.Y.] 2012-13. P a g e | 2
A.Y. 2012-13
Late Shri Kasam Nurmad Karadiya
The grounds of appeal are as under: 1. The order of the learned Assessing officer is based on incorrect application of facts and wrong interpretation of law and therefore, is bad in law. 2. The Hon’ble CIT (A) has though passed an Ex-parte order however has erred in passing the same without having adjudicated upon the facts placed before him (vide statement of facts) and without having adjudicated upon the grounds of appeal. Without prejudice to the above, the appellant submits that: 3. The Ld. Assessing Officer has erred in treating an amount of Rs. 55,74,800/- (as against 50,59,270/-) as income from other sources, without appreciating the provisions of section 27(iii) of the I.T Act, 1961. 4. The Ld. Assessing Officer has erred in consequently disallowing the deduction claimed under section 54F of the Act, without appreciating the facts of the case as well as provisions of law. 5. The Ld. Assessing Officer has erred in disallowing the deduction claimed under section 54F of the I.T Act, 1961, misinterpreting the provisions of law by holding the date of registration of agreement as the date of purchase of new flat as against the actual date being the date of allotment/date of the amount receivable from developer having been adjusted against the allotment of flat i.e on 13/04/2012. 6. The appellant therefore prays that the Ld. Assessing officer may please be directed to hold the receipt of amount receivable from the developer which is adjusted against the allotment of flats as capital receipt and not to consider the same as income from other sources and consequently allow appellant’s claim of deduction u/s 54F of the IT Act, 1961. 7. The Hon’ble CIT(A) has erred in confirming the disallowance made by the Ld. Assessing Officer on the ground of appellant having invested in purchase of two separate residential properties without appreciating the fact of same infact being one single residential house. 8. The Hon’ble CIT(A) has erred in treating an amount of Rs. 21,642/- being agricultural income as income from other sources without appreciating the facts of the case as well as law. 9. The Hon’ble CIT(A) has erred in treating an amount of Rs. 25,688/- being interest income as income from other sources without appreciating the facts of the case as well as law. 3. At the outset, we noticed that the present appeal is delayed by 599 days. In this regard, as per delay condonation application, it is P a g e | 3 A.Y. 2012-13
Late Shri Kasam Nurmad Karadiya submitted that assessment was completed vide an order dated
06.12.2017 passed u/s 143(3) r.w.s 147 of the Act, against which the assessee filed an appeal on 01.01.2018 before the ld. CIT(A), who passedex-parte appellate order dated 05.06.2023. It is submitted that appellate proceedings could not be attended on account of the unfortunate sad demise of the assessee on 27.02.2020 resulting into delay even in filing of appeal before ITAT. The delay was mainly on account of the facts that none of the family members were aware of the proceedings and it was only upon by having received an intimation/letter from the Juri ictional Assessing Officer that the family members came to know about the appeal having been dismissed.
Since the delay is not only unintentional but on account of the above facts, it is requested that it may be condoned and appeal may be admitted and adjudicated upon in the interest of justice.
4. On careful consideration of the submissions of the assessee, we are of the considered opinion that the delay in filing of the present appeal was not intentional but due to unavoidable and sufficient cause.
Such a bonafide mistake needs to be condoned. 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.
P a g e | 4
A.Y. 2012-13
Late Shri Kasam Nurmad Karadiya
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.” We therefore, condone the delay.
5. Brief facts of the case are that the assessee Late Shri. Kasam
Nurmad Karadiya, an individual engaged in the business of dairy farming and agricultural activity had filed his return of income for the year under consideration declaring total income of Rs. 1,87,320/-.,
Subsequently, reassessment proceedings were initiated by issuing notice u/s 148 of the Act, in response to which the assessee filed return declaring total income at Rs. 1,65,680/-. The assessment in respect of which was completed by assessing total income at Rs. 57,87,410/- by treating the capital receipts amounting to Rs. 55,74,800/- as Income
P a g e | 5
A.Y. 2012-13
Late Shri Kasam Nurmad Karadiya from other sources, consequently resulting into disallowance of deduction claimed u/s 54F of the Act and treating the agriculture income of Rs. 21,642/- too as Income from other sources.
6. Against the said assessment order, assessee filed an appeal before the ld. CIT(A), which was decided vide an ex-parte order. It is evident that the appellate order has been passed in ex parte manner mainly on account of lack of proper compliance by the assessee during appeal proceedings. Consequently,the ld.CIT(A) has not decided the appeal on merits which is contrary to the mandate of section 250(6) of the Act. A bare perusal of the provision makes it clear that the CIT(A) is bound to dispose of the appeal before him on merits. Once an appeal is preferred before him, then in disposing of the appeal, he is obliged to make such further inquiry that he thinks fit or direct the AOto make further inquiry and report the result of the same to him as per section 250(4) of the Act. Section 251(1)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides, Explanation to sub-section (2) of Section 251 of the Act also makes it dear that while considering the appeal, the CIT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for P a g e | 6
A.Y. 2012-13
Late Shri Kasam Nurmad Karadiya its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). The appellate order is therefore, deficient in this regard.
7. During the course of hearing, none attended. Since the ld. CIT(A) passed ex-parte order and the assessee was not provided adequate opportunity of being heard,we proposed that therepresentatives of the deceased assessee may be provided one more opportunity to advance their arguments/submissions before the lower authoritiesso as to provide details in connection with the merits of its case to support the contentions made in the grounds of appeal. The ld.DR agreed to this proposal.
8. We have heard both the parties and perused the materials available on record. In the light of above observations, in the substantial interest of justice, we set aside the appellate order and restore the entire matter back to the ld.CIT(A) for passing the appellate order de novo. In case of any failure on the part of the assessee, he would be at liberty to pass order after considering the materials on record. The assessee’s AR will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings before the ld.CIT(A).
9. In the result, the appeal is allowed for statistical purposes.
P a g e | 7
A.Y. 2012-13
Late Shri Kasam Nurmad Karadiya
Order pronounced in the open court on 04.08.2025. SAKTIJIT DEY
PRABHASH SHANKAR
(उपाध्यक्ष/ VICE PRESIDENT)
(लेखाकार सदस्य/ACCOUNTANT MEMBER)
Place: म ुंबई/Mumbai
ददनाुंक /Date 04.08.2025
Lubhna Shaikh / Steno
आदेश की प्रतितलति अग्रेतिि/Copy of the Order forwarded to :
1. अपीलार्थी / The Appellant
2. प्रत्यर्थी / The Respondent.
3. आयकर आयुक्त / CIT
4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT,
Mumbai
5. गार्ड फाईल / Guard file.
सत्यावपि प्रवि ////
आदेशानुसार/ BY ORDER,
उि/सहायक िंजीकार (Dy./Asstt.