MRUNAL NILESH DESAI,THANE vs. ACIT,CIRCLE 19(2), MUMBAI

This appeal is filed by the assessee against the appellate order passed by the learned Commissioner of Income-tax (Appeals)-30, Mumbai [the learned CIT (A)] dated 20th May, 2019 for A.Y. 2010-11, wherein the appeal filed by the assessee against the assessment order passed under Section 144 read with section 147 of the Income-tax Act, 1961 (the Act) by the learned Asst. Commissioner of Income Tax 19(2), Mumbai (the learned Assessing Officer) was dismissed by the learned Commissioner of Income-tax (Appeals). Assessee aggrieved by the appellate order is in appeal before us raising following grounds:-

The learned Departmental Representative vehemently opposed the above condonation petition stating that the delay is not caused for valid reason.

We have carefully considered the rival contentions. We find that there is a change in the address of the assessee. Therefore, because of the failure of service of notice and orders, the assessee could not remain present before the learned Assessing Officer. Secondly, the order of the learned CIT (A), was also passed stating the old address despite mentioning this fact in form no.35, though there is an error committed by the assessee of mentioning the same address in form no.35. The order of the learned CIT (A) was also sent at the old address. The assessee came to know about such order only on 17th May 2022 as her locker with ICCI bank is attached. The assessee immediately sought advice of the Chartered Accountant and filed appeal on 30th May, 2022. The assessee is not gaining anything by filing appeal late. The reasons are also sufficiently explaining the delay. Therefore, delay in filing of appeal is condoned and appeal is admitted.

Assessee preferred appeal before the learned CIT (A) wherein the assessee submitted that all notices were served at the above[ old] residential address and assessee does not reside there, therefore, assessment order passed without hearing the assessee is not proper. However, the assessee in form no. 35 mentioned the same address. The learned CIT (A) also issued the notices at the same address mentioned in form no.35. None appeared and therefore, he dismissed the appeal of the assessee. Aggrieved by that appellate order, assessee is in appeal before us.

Before us, assessee has given the correct address now, 12/D, Cedar Co-operative Housing Society, Edenwoods Cross Pokhran 2, Thane (West), 400610.

The learned Departmental Representative vehemently opposed the above statement and submitted that when the assessee filed appeal before the learned CIT (A) proper address was not provided in form no.35 and therefore, no fault can be found in the orders of the lower authorities.

I have carefully considered the rival contentions and find that assessee is an individual, non-filer of the return of income. The notices were issued to the assessee on the basis of address available to the learned Assessing Officer from the transaction of the sale of the property. There is a change in the address of the assessee after that. No doubt, the assessee has committed an error by mentioning the same address in form no.35. However, because of this error on part of the assessee that tax liability cannot be fastened on her without giving an opportunity of hearing. Therefore, I find that the assessee deserves one more opportunity before the lower authorities. Even otherwise, the whole of the sale consideration of the property cannot be taxed in the hands of the assessee only capital gain deserves to be taxed. The learned Authorized Representative has categorically stated that the sale consideration of ₹15 lacs has indexed cost of acquisition

In the result, appeal filed by the assessee is party allowed with above direction.