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Income Tax Appellate Tribunal, CHANDIGARH BENCH
Before: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM
आदेश/ORDER PER DIVA SINGH
The present appeal has been filed by the assessee wherein the correctness of the order dated 10.11.2017 of CIT(A), Panchkula pertaining to 2007-08 assessment year has been assailed on various grounds.
However, before addressing the same, the assessee is required to address the delay of 303 days in the filing of the present appeal pointed out by the Registry. The ld. AR appearing on behalf of the assessee drew attention to the condonation of delay application filed by Shri Satish Kumar as legal heir of the assessee submitted that there is no delay. The following reply dated 20th May, 2019 on behalf of the was relied upon :
ITA 1387/CHD/2018 A.Y. 2007-08 Page 2 of 10 1. It is submitted that there is no delay in as much as the copy of the order passed by the CIT(A), Panchkula was received only on 18.09.2018 and the appeal has been filed on 08.11.2018 which is within time. However, three copies of the application for condonation of delay alongwith letter dated 28.08.2018 addressed to Income tax Department for issuance of the order passed by the CIT(A), Panchkula and affidavit are enclosed herewith (in triplicate). 2. Copy of Form No. 36 in new format is enclosed herewith (in triplicate). 3. The certified copy is already on record which has been endorsed by Administrative Officer, O/o CIT(A), Panchkula. 3. The following facts asserted by identical dated application of
assessee were also relied upon :
That the above Income Tax Appeal against the orders dated 10.11.2017 of the Commissioner of Income Tax (Appeals)-3, Gurgaon was filed on 08.11.2018 which has been stated to be late by 303 days. 2. That the appellate order was received on 18.09.2018 and as such the appeals were to be filed by 18.11.2018. 4. However, the parties were required first to address how Shri
Satish Kumar was claiming to have been the legal heir of Smt.
Jaiwantri Devi.
Time was given to the department and the assessee to address
the facts.
Ld. AR subsequently vide application dated 16th July, 2019
made prayer that delay, if any be condoned.
Shri Satish Kumar, it was stated was the grandson of Smt.
Jaiwantri Devi as her son Shri Mam Chand has also expired and is
survived by a widow ( i.e. Satish Kumar’s mother) and his brothers.
Copies of the Death Certificate of Smt. Jaiwantri Devi and her son
Shri Mam Chand were filed and relied upon. It was pointed out that
time had been given to the department to verify the facts and
nothing adverse has been stated. Accordingly, it was his request
ITA 1387/CHD/2018 A.Y. 2007-08 Page 3 of 10
that Shri Satish Kumar may be brought on record as the legal heir
of Smt. Jaiwantri Devi. The ld. AR inviting attention to the record
submitted that he was required to address the surviving family
members of Smt. Jaiwantri Devi and give the relevant details. These,
it was submitted, have been made available vide application dated
16.07.2019. Time, it was re-iterated had been given to the
department to verify this factual position, however, the department
has not stated whether the facts had been verified or not.
The ld. AR inviting attention to the amended application for
condonation of delay and the facts on record submitted that even
otherwise the impugned order has been passed ex-parte wherein the
assessee could not participate.
8.1 The assessment order, it was pointed out is also ex-parte order
u/s 144/147 of the Act. The transactions of sale of lands by the
late assessee Smt. Jaiwantri Devi and her son Shri Mam Chand have
been noted. Shri Mam Chand, it was submitted, expired on
10.10.2007 i.e. on the date the assessment order was passed, he
was not alive. The order is dated 31.03.2015. Smt. Jaiwantri Devi
was then alive. However, when the first appeal came up for hearing
i.e. on 24.10.2016, she too had expired. Referring to the Death
Certificate, it was submitted she passed away on 03.09.2016. The
assessee's claim has been rejected and exemption u/s 54B was
denied on the ground that investment was made in the name of her
son Shri Mam Chand ( who was then alive) his wife (Smt. Bala Devi)
ITA 1387/CHD/2018 A.Y. 2007-08 Page 4 of 10
and three grand sons. The following facts from the assessment order
were referred to show that Shri Satish Kumar was the son of Shri
Mam Chand who was son of Smt. Jaiwantri Devi :
“As per information available with this office it was found that the assessee alongwith Sh. Mam Chand sold land measuring 68 kanal 12 marla to S/Sh. Des Raj, Ashwani Goel, Sanyam Goel and Rachul Goel, Civil Lines, Jagadhri for a consideration of Rs.45,00,000/- on 14.02.2007. The assessee alongwith Sh. Mam chand also sold land measuring 129 kanal 10 marla to Maharaja Aggarsain Mahavidayalya Sabha (Regd.), Jagadhri for a consideration of R$.3,39,93,750/- on 11.08.2006. The assessee was having equal share in the both the above said lands. The land sold by the assessee is covered within the ambit of capital asset as per provision of section 2(14) as the distance of land sold in Village Kail falls within 8 Km. of the municipal limits of Jagadhri.”
8.2 The following facts noticed by the AO at page 4 para 3 were
also referred to :
Name Amount Stamp duty Area (Hectare) Date of purchase Rakesh Kumar 20,00,000 1,68,560 3-2100 14.3.2006 (Grand Son) 10,00,000 83,520 1-6050 14.8.2006 Mam Chand 50,000 5,920 0-1124 14.6.2007 (Sonf Hukam Chand 90,000 7,600 0.1460 7.6.2007 (Grand Son) 60,000 5,680 0.1090 7.6.2007 10,00,000 1,12,000 2.1433 23.2.2007 2,00,000 28,000 0.5380 15.3.2007 50,000 5,920 0.1130 15.3.2007 4,90,000 53,200 1-0230 15.3.2007 6,00,000 50,320 0-9592 7.6.2007 Bala Devi 1,50,000 10,560 0-2700 20.11.2006 (Son's wife) 20,00,000 1,60,000 3-4300 28.11.2006 2,00,000 16,020 0-4100 23.11.2006 80,000 5,400 0-1370 20.11.2006 3,00,000 21,000 0.5380 23.11.2006 Satish Kumar 6,00,000 69,300 1-3310 18.09.2006 (Grand son) 16,00,000 1,54,500 2-9450 05.10.2006 30,000 3,040 0-0580 03.10.2006 2,00,000 21,360 0-4100 25.09.2006 9. Referring to the condonation of delay application dated
16.07.2019 the ld. AR submitted that Smt. Jaiwantri Devi expired on
23.09.2016 and the impugned order is dated 10.11.2017 i.e. on the
said date Smt. Jaiwantri Devi was no longer alive. The said claim it
was submitted, is supported by way of a Death Certificate filed by
Registrar, Birth and Death, Medical Officer I/G Hon'ble Punjab &
ITA 1387/CHD/2018 A.Y. 2007-08 Page 5 of 10
Haryana High Court, Bhambhol, Yamuna Nagar dated 13.06.2016.
The said lady as per Death Certificate died on 23.09.2016 was aged
85 years.
It was submitted that the legal heir Shri Satish Kumar has
stated that his father who was the only son of Smt. Jaiwantri Devi
had expired on 10.10.2007. It was his submission that the fact is
also supported by the relevant document i.e. the Death Certificate of
Shri Mam Chand son of Shri Sadhu Ram died on 10.10.2007,
Registration No. 181 dated 12.10.2007. Smt. Jaiwantri Devi’s son is
survived by her son’s widow Smt. Bala Devi and her three sons Shri
Hukam Chand, Shri Rakesh Kumar and Shri Satish Kumar.
Accordingly, it was his prayer that there is no delay in the filing of
the appeal. Without prejudice to these arguments, it was submitted
that in case the Bench is still of the view that there was a delay, it
was his submission that relying on the contention of the
condonation of delay application and supporting evidences, it was
his prayer that the delay may be condoned. It was also his prayer
that since despite an opportunity the department has brought no
fact on record to dispel the prayer of the assessee, in the
circumstances it was requested that Shri Satish Kumar may be
taken as the legal heir of Smt. Jaiwantri Devi on record and the
matter may be remanded in order to provide the assessee an
opportunity of being heard.
ITA 1387/CHD/2018 A.Y. 2007-08 Page 6 of 10
The ld. Sr.DR on a perusal of the original condonation of delay
application and the revised application alongwith supporting
evidences stated that these facts need to be verified by the AO. He
agreed that time has been given earlier also, however since facts
need to be verified and even on merits, the matter has to be
remanded to the AO, an appropriate direction may be given to the
AO to first bring the correct legal heirs on record. The delay in the
peculiar facts and circumstances, it was submitted, may be
condoned.
We have heard the rival submissions and perused the material
available on record. It is relevant to bring out the contents of the
amended application for condonation of delay dated 16.07.2019
which read as under :
Amended application for condonation of delay Respectfully submitted as under:- 1. That the above Income Tax Appeal against the orders dated 10.11.2017 of the Commissioner of Income Tax (Appeals)-3, Gurgaon was filed on 08.11.2018 which has been stated to be late by 303 days. 2. That the appellate order was received on 18.09.2018 and as such the appeals were to be filed by 18.11.2018. 3. That Late Smt. Jaiwantri Devi is the Grandmother (Dadaji) of the undersigned who expired on 23.09.2016. Copy of the death certificate is annexed herewith. 4. That my father Late Sh. Mam Chand who was the only son of Smt. Jaiwantri Devi had expired on 10.10.2007 leaving behind his wife Smt. Bala Devi and three sons namely Sh. Hukam Chand(7th pass), Sh.Rakesh Kumar(10th Pass) and the undersigned Sh. Satish Kumar(12th Pass). Copy of the death certificate of my father is annexed herewith. 5. That the only source of income of our family is agriculture. 6. That on visit to the office of Commissioner of Income Tax(A), Panchkula in connection with hearing of another appeal (Case no. 246/YNR/15-16) in case of Smt. Jaiwantri Devi, Village Kail, Distt. Yamuna Nagar on 28/08/2018 [appeal against the order of the Income
ITA 1387/CHD/2018 A.Y. 2007-08 Page 7 of 10 Tax Officer, Ward-3, Yamuna Nagar u/s 271(l)(c) ], it was brought to the notice of the undersigned that the order in the quantum appeal has already been passed on 10.11.2017. 7. That the undersigned Sh. Satish Kumar, legal heir of the assessee immediately made a request for issuance of duplicate copy of the order in the office of the CIT (A), Panchkula. Copy of the same is annexed herewith. 8. That the Commissioner of Income Tax (Appeals) on receipt of letter issued certified copy of the order which was received on 18.09.2018. 9. That immediately corrective measures were initiated and the appeal was filed on 08.11.2018. 10. That there being no mala fide intention of not filing the appeals in time, it is prayed that the delay be condoned. 11. That the affidavit of the undersigned is enclosed herewith.” It is. therefore, respectfully prayed that the delay be condoned there being a reasonable cause and in the in interest of substantial justice, the appeal be heard on merits.” Sd/- (Satish Kumar) Legal Heir of late Smt. Jaiwantri Devi. Encl: as above (emphasis supplied)
12.1 We have seen the copy of the Death Certificate dated
13.10.2016 of deceased Smt. Jaiwantri Devi who expired on
23.09.2016 at the age 85 years. We have also seen the copy of the
Death Certificate dated 18.10.2007 certifying that Shri Mam Chand
expired on 10.10.2007. The contents of the affidavit of Shri Satish
Kumar, grandson of Smt. Jaiwantri Devi have also been seen.
These, it is seen are identical to the pleadings made in the revised
application and are extracted hereunder :
AFFIDAVIT I. Satish Kumar son of Shri Mam Chand aged 34 years resident of Village Kail, Teh -Jagadhri, Distt. Yamuna Nagar do hereby solemnly affirm and declare as under: - 1. That I am the legal heir of Late Smt. Jaiwantri Devi.
ITA 1387/CHD/2018 A.Y. 2007-08 Page 8 of 10 2. That the above Income Tax Appeal against the orders dated 10.11.2017 of the Commissioner of Income Tax (Appeals)-3, Gurgaon was filed on 08.11.2018 which has been stated to be late by 303 days. 3. That the appellate order was received on 18.09.2018 and as such the appeals were to be filed by 18.11.2018. 4. That Late Smt. Jaiwantri Devi is the Grandmother (Dadi Ji) of the undersigned who expired on 23.09.2016. 5. That my father Late Sh. Mam Chand who was the only child of Smt. Jaiwantri Devi had expired on 10.10.2007 leaving behind his wife Smt. Bala Devi and three sons namely Sh. Hukam Chand (7th Pass), Sh. Rakesh Kumar (10th Pass) and the undersigned Sh. Satish Kumar (12th Pass). 6. That the only source of income of our family is agriculture. 7. That on visit to the office of Commissioner of Income Tax(A), Panchkula in connection with hearing of another appeal (Case no. 246/YNR/15-16) in case of Smt. Jaiwantri Devi, Village Kail, Distt. Yamuna Nagar on 28/08/2018 [appeal against the order of the Income Tax Officer, Ward-3, Yamuna Nagar u/s 271(l)(c) ], it was brought to the notice of the undersigned that the order in the quantum appeal has already been passed on 10.11.2017. 8. That the undersigned Sh. Satish Kumar, legal heir of the assessee immediately made a request for issuance of duplicate copy of the order in the office of the CIT (A), Panchkula. 9. That the Commissioner of Income Tax (Appeals) on receipt of letter issued certified copy of the order which was received on 18.09.2018. 10. That immediately corrective measures were initiated and the appeal was filed on 08.11.2018. Sd/- Deponent Verified that the above noted contents of my affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed therein.
Sd/- Chandigarh Deponent Dated 16th July 2019.
12.2 On a perusal of the above, we are of the view that the delay
as pointed out by the Registry stands fully addressed. We have
noted that infact on the date when the appeal filed by Late Smt.
Jaiwantri Devi came up for hearing before the CIT(A), she already
had breathed her last. In the circumstances, the facts as argued in
regard to obtaining a copy of the order by her surviving family
ITA 1387/CHD/2018 A.Y. 2007-08 Page 9 of 10
members through her grandson Shri Satish Kumar, we find cannot
be said to leading to a situation which can be described as a delay.
In the facts as argued which are not shown to be incorrect in regard
to the date on which the order was made available, we find that
there is no delay and the appeal is filed within time. However, what
is still crucial and necessary to be addressed is whether the sole
surviving member of Smt. Jaiwantri Devi were only the family
members of her son Shri Mam Chand. No doubt Shri Satish Kumar
is one of the grandson of Late Smt. Jaiwantri Devi but the exercise
of bringing a legal heir on record has to be carried out by the
Assessing Officer after carrying out a local enquiry. It has been
stted on an affidavit by Shri Satish Kumar that only the widow of
the son of late Smt. Jaiwantri Devi is alive alongwith her three
sons, one of which is Shri Satish Kumar. Accordingly in the
peculiar facts and circumstances as available, we are of the view
that it would be appropriate to direct the AO to first verify the facts
by making a local enquiry so as to bring the legal heirs of Smt.
Jaiwantri Devi on record. After carrying out the said exercise, the
AO shall then proceed to decide the issues on merits taking note of
the fact that the aged lady has re-invested the amounts in the
names of her erstwhile son, daughter-in-law and grandsons in
accordance with law after giving the assessee a reasonable
opportunity of being heard.
ITA 1387/CHD/2018 A.Y. 2007-08 Page 10 of 10
Accordingly, for the detailed reasons hereinabove accepting the
explanation as bonafide and true, we note that in fact there is no delay.
13.1 Addressing the without prejudice alternate prayer, we note that
even otherwise the delay of 303 days if so considered also on facts as
available and discussed in detail in the earlier part of this order deserves
to be condoned. While so holding, we note that no undue advantage is
derived by the assessee in case the delay is condoned and conversely no
vested right of the Revenue is disturbed in case the delay is condoned
and the order is passed on merits.
Accordingly, in view of the above reasoning, the issues are
remanded back to the AO with the above directions. Said order was
pronounced in the Open Court at the time of hearing itself.
In the result, appeal of the assessee is allowed for statistical
purposes.
Order pronounced in the Open Court on 13.08. 2019.
Sd/- Sd/-
( अ�नपूणा� गु�ता ) ( �दवा �संह ) (ANNAPURNA GUPTA) (DIVA SINGH) लेखा सद�य/ Accountant Member �या�यक सद�य/ Judicial Member “पूनम” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : अपीलाथ�/ The Appellant – 2.��यथ�/ The Respondent -3.आयकर आयु�त/ CIT4.आयकर आयु�त (अपील)/ The CIT(A) 5.�वभागीय 1. ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6.गाड� फाईल/ Guard File आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar