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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
Before: SHRI AMARJIT SINGH & SHRI AMARJIT SINGH
आदेश / O R D E R
PER AMARJIT SINGH, AM:
The present appeal filed by the assessee is directed against the order passed by the CIT(A)-57, Mumbai, which in turn arises from the order passed by the A.O. u/s 144 of the Income Tax Act, 1961 for A.Y. 2015-16. The assessee has assailed the impugned order on the following grounds before us:
“1. General Ground erred in dismissing the appeal filed by the Appellant thereby upholding the order of the learned Assessing Officer wherein, the total taxable income of the Appellant was determined at INR 73,76,750 as against income of INR 290 reported in the return of income for the subject AY; 2. Non service of notice erred in dismissing the appeal filed by the Appellant disregarding the fact that the Appellant was not residing in India and none of the notices issued by the Hon'ble CIT(A) were actually served upon the Appellant;
3. Property taken in joint name of the appellant and the spouse and consideration of only INR 9,61,569 paid by the appellant a. erred in adding the entire amount of the Appellant's share in the consideration of the property amounting to INR 73,76,461 without appreciating the fact that the payment was made in parts in the ratio of the slabs constructed in the building; b. erred in disregarding the fact that during the year under consideration, merely a payment of INR 9,61,569 was made by the Appellant against the impugned property; c. erred in not appreciating the fact that the impugned property was merely taken in the joint name of the Appellant and her husband for personal convenience, however, the payment for acquiring the same was made predominantly by the husband of the Appellant through valid and genuine banking channels.
4. Investments made through legitimate banking channels
a. erred in not appreciating that the investment in the impugned property has been made from genuine banking channels and the question of any undisclosed income does not arise; b. erred in not appreciating that the investment in the impugned property was made by the Appellant from the maturity proceeds of her earlier investments; and 5. Consequential interest and penalty a. erred in levying consequential interest u/s. 234B and u/s 234C without giving any opportunity of hearing and in not passing any speaking order for the levy of interest; b. erred in initiating penalty proceedings under Section 271(l)(b) and Section 271()(c) of the Act.
6. The Appellant craves leave to add, alter, omit or substitute any or all of the above grounds of appeal, at any time before or at the time of the appeal, to enable the Hon'ble ITAT to decide the appeal according to law.”
During the course of appellate proceeding before us the assessee has filed application for condonation of delay in filing the instant appeal by 898 days. The assessee has also attached the affidavit explaining the reason for delay in filing the instant appeal. The assessee stated that he was a non-resident in India in A.Y. 2015-16. He was residing outside of India (in Dubai & USA) from 01.04.2018 to 14.08.2021 and visited India from 19.11.2019 to 21.12.2019. In support of the same the assessee has enclosed copies of pages of passport with the appeal papers. The assessee had further submitted that she was unawared of the notices issued and dismissal of her appeal by the ld. CIT(A). She further submitted in the affidavit that she has elongated her stay in Dubai on account of the prolonged travel restrictions placed on offshore flights due to outbreak of the Covid-19 virus all around the world and she returned to India only on 15.08.2021 and realized that her bank accounts maintained in IDBI bank in Powai branch in Mumbai was frozen by the Income Tax Department on account of outstanding tax arrears. Therefore, the assessee has requested for condonation of delay in filing the instant appeal due to abovementioned reasons beyond her control.
Heard both the side and perused the material on record. We observed that assessee has demonstrated from above facts that there was reasonable cause for delay in filing the instant appeal. The hon’ble Supreme Court in the case of Collector Land Acquisition Vs. MST. Katigir Ors. Civil appeal No. 460 of 1987, wherein it is held that sufficient cause for the purpose of condonation of delay should be interpreted with a view to do even handed justice on merit in preference to the approach which scuttles a decision on merits. Considering above facts and circumstances we condone the delay in filing this appeal by the assessee.
The fact in brief is that assessee is a non resident and filed return of income electronically on 31.08.2015 declaring total income of Rs.290/- . The case was subject to scrutiny assessment and notice u/s 143(2) of the Act was issued on 29.07.2016 and served on the assessee by email on 16.09.2016. During the course of assessment proceedings notices issued u/s 142(1) of the Act upon the assessee were remained unserved as assessee was not available at the given address. Consequently, the A.O has completed the exparte assessment u/s 144 of the Act. The A.O has obtained the copy of registered document in respect of the property purchased by the assessee during the year under consideration from the registrar. The A.O has noticed that as per the registered document the assessee had purchased residential flat in Borivali for total consideration of Rs.1,47,52,923/-. The A.O stated that since the assessee has not made compliance during the course of assessment proceedings, therefore, 50% of the investment made in the aforesaid residential flat which come to Rs.73,76,461/- was added to the total income of the assessee because the assessee was a joint holder along with her husband in the aforesaid property.
Aggrieved, the assessee filed by the appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee for not making compliance during the course of appellate proceedings.
During the course of appellate proceedings before us the ld. Counsel of the assessee submitted paper book comprising copies of document i.e return of income, copy of passport of the assessee, copy of agreement for purchase of flat, copy of bank statement of the husband of the assessee etc. The ld. Counsel submitted that investment in the said property was made from genuine banking channel and addition in the case of the assessee was incorrectly made. The ld. Counsel also submitted that assessee was not in India, therefore, she could not made compliance to the various notices issued during the course of assessment proceedings and appellate proceedings. It is also submitted that said flat has been purchased from joint funds of herself and her husband. The ld. Counsel has also submitted that assessee could not visit India because of Covid restrictions prevailing all over the world at the time of appellate proceedings before the ld. CIT(A). On the other hand, the ld. D.R has supported the order of the lower authorities.
Heard both the side and perused the material on record. Without reiterating the facts discussed above in this order the assessee has explained that during the course of appellate proceedings before the ld. CIT(A) she was residing in Dubai and the notices of hearing issued by the ld. CIT(A) returned unserved. During the course of appellate proceedings the assessee was not in India, therefore, the assessee was not awared of the notices issued during the course of appellate proceedings before the ld. CIT(A). During the course of appellate proceedings before us it is submitted by the assessee that the said flat has been purchased from joint funds of herself and her husband and she had contributed only to the amount of Rs.9,61,569/- up to the financial year 2014-15. In this regard the assessee has placed relevant supporting evidences from page 1 to 283 in the paper book. Considering the submission of the assessee and material placed on record we observe that there was a reasonable cause for not making compliance before the ld. CIT(A) during the course of appellate proceedings by the assessee. Therefore, we consider that it will be appropriate to provide one more opportunity to the assessee. Accordingly, we restore this case to the file of the ld. CIT(A) for adjudicating the same afresh after taking into consideration the material placed by the assessee in the paper book and after affording adequate opportunity to the assessee. The assessee is also directed to make compliance before the ld. CIT(A) without any failure. Therefore, the appeal of the assessee is allowed for statistical purposes. 8. In the result, the appeal of the assesse is allowed for statistical purposes. Order pronounced in the open court on 27.04.2022