ABDUL GAFFAR SULEMAN CHHAPRA,MUMBAI vs. ITO 24(1)(1), MUMBAI

The grounds of appeal are as under:

On the facts and circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals), NFAC erred in applying the provisions of Section 50C of the Income tax Act 1961 on the Ancestral Property which has many tenants, encumbered property and was in Litigation. On the facts and circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals), NFAC erred in not considering the Clauses and Facts mention in the property Agreement Registered with property registrar Mumbai that the Appellant is one of the Co-Owner of the tenanted Occupied property out of total 6 Co-owner and legal heir. On the facts and circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals), NFAC erred in not considering the Co-owners share as mentioned in the property Agreements and Bank payments made to them while making the total Addition in the Appellant Hands. On the facts and circumstances of the case and in law, the Ld. Commissioner of Income Tax (Appeals), NFAC erred in not considering the Investment Made by the Appellant in the New Residential House in subsequent year i.e. A.Y. 2011-2012 and allowing the benefit of Section 54/54F of the income tax Act 1961. 3. Facts of the case in brief are that in this case, in the assessment order passed u/s 143(3)/147 of the Act, addition of Rs 1,31,03,000/- made to the returned income of Rs 2,30,000/- on account of undisclosed Long Term Capital gains. In the subsequent appeal filed before the ld.CIT(A),it was noticed by him that the assessment order was passed by the Assessing Officer on 22/12/2017 and the same was stated to have been received by the appellant on 27/12/2017. As per the provisions of Section 249(2)(c), the appeal was to be filed before the CIT(A) on or before 26/01/2018 and there was delay of 148 days in filing of the appeal as the appellant filed the instant appeal only on 25/06/2018 after a delay of 150 days. Before him, vide an affidavit filed, it was explained by the assessee that the reason for the delay was that he was not well at the time of receipt of the order and was undergoing severe heart problems and treatment and was also operated for the same and was on bed rest. However, it was noted by the ld.CIT(A) that the appellant had not filed any medical certificates/evidences for hospitalization etc. in this regard without any documentary proof of hospitalization/doctor's certificate etc. Accordingly, he observed that in view of the provisions of section Sec. 249(2), delay may be condoned only when the CIT(A) is satisfied that the appellant had sufficient cause for not presenting it within the 'due date'. The appellant had not explained the purported 'sufficient cause' for not preferring the appeal within the time limit as prescribed under Section 249(2) of the Act. Accordingly, he dismissed the appeal on the ground of delay as he was not satisfied with the reasons adduced for such delay.

Before us, the ld.AR has submitted a Paper Book-2 containing copies of various hospital and medical diagnosis reports showing he was admitted in Kokilaben Hospital, Mumbai in March 2018 due to certain medical exigencies and was undergoing treatment.We are of the considered view that there was a reasonable cause for the delay. We,

1 Since the ld.CIT(A) dismissed the appeal solely on the ground of delay, he failed to adjudicate the issues raised in the grounds of appeal and did not examine the materials available on record. Such dismissal without deciding the appeal on merits is contrary to the principles of natural justice. It is settled law that it is the duty of the appellate authority to dispose of an appeal on merits after considering the material on record, even if the appellant fails to appear. However, it is equally true that it is the fundamental duty of the assessee to diligently pursue the appeal and comply with the notices and proceedings initiated by the Revenue authorities. The framework of the Act rely heavily on the co-operation and active participation of the taxpayer.

2 Considering all the relevant facts of the case, we are of the considered view that it would be fair and judicious to allow an opportunity of hearing to the assessee to explain the matter before lower authorities in the interests of justice. During the hearing, the Bench proposed for restoration of the matter to the ld.CIT(A) for a de novo consideration. The Revenue did not vehemently oppose this plea. Thus, in the in the interest of justice, we deem it appropriate to send back the appeal for fresh consideration. The ld. CIT(A) shall give proper and adequate opportunity of being heard to the assessee in accordance with principles of natural justice in the set aside remand proceedings for de novo adjudication of the appeal of the assessee filed before him. Needless to state, the assessee will comply with notices and make available any details as deemed fit and sought by the appellate authority.

3 Before parting with the subject, we would like to make it clear that setting aside the appeal for de novo consideration by us,should not be construed in any manner affecting the merits of the case for which the ld.CIT(A) is duly empowered to take an independent decision in accordance with the provisions of law.

In the result, the appeal is allowed for statistical purposes. Order pronounced in the open court on 12/03/2025. NARENDER KUMAR CHOUDHRY (न्यायिक सदस्य /JUDICIAL MEMBER) Place: मुंबई/Mumbai दिनांक / Date 12.03.2025 Lubhna Shaikh / Steno PRABHASH SHANKAR (लेखाकार सदस्य/ACCOUNTANT MEMBER) आदेश की प्रतिलिपि अग्रेषित/