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Facts
The assessee filed an appeal after a significant delay of 394 days due to her son's preoccupation with her and his wife's medical ailments and his misunderstanding of tax notices. The appeal concerns a claim of short-term capital loss arising from the sale of co-owned land, where the AO/CIT(A) added the difference as long-term capital gain.
Held
The Tribunal condoned the delay in filing the appeal. It was held that since other co-owners' appeals with similar facts were accepted, the assessee's appeal should also be treated similarly in the interest of consistency.
Key Issues
Whether the delay in filing the appeal can be condoned due to the assessee's son's personal circumstances. Whether the addition made by the AO/CIT(A) on account of long-term capital gain is sustainable when similar cases of co-owners were decided differently.
Sections Cited
253(3), 274, 271(1)(c), 148, 149(1)(b), 147, 144B, 151(1)
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Income Tax Appellate Tribunal, “SMC” BENCH, KOLKATA
Kalyani Koley, C/o Late Sukimar Koley, Vill- Beldubi, PO Beldubi, PS Panchla, Distt, Howrah - 711322 [PAN: CNUPK400IN] ……..…...…………….... Appellant vs. CIT(A), Kolkata, 3, Government Place, Kolkata - 700001 ................................ Respondent Appearances by: Assessee represented by : Sanjay Bhamik, Debarghya Banerjee, ARs Department represented by : Pampa Ray, Sr. DR, JCIT Date of concluding the hearing : 03.11.2025 Date of pronouncing the order : 04.11.2025 O R D E R
PER SANJAY AWASTHI, ACCOUNTANT MEMBER:
In this case, there is a delay of 354 days in filing of this appeal. This has been requested to be condoned through an affidavit filed by the son of the assessee (constituent attorney) as under:
1. Being aggrieved by the order dated November 1, 2023 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, for the assessment year 2013- 14, your petitioner has preferred the instant appeal. Your petitioner states that the said order dated November 1, 2023 was received by your petitioner on the same day, that is, on November 1, 2023. The period of 60 days prescribed in section 253(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act") for preferring the appeal expired on December 31, 2023. Нowever, the said appeal is being filed on January 27, 2025. As such, there has been a delay of 394 days in preferring the said appeal.
2. Your petitioner is a 65 year old widow and is suffering from various ailments. She, in respect of her banking and other official work, is completely dependent on her son, Mr. Kuntal Kumar Koley, who is a primary school teacher working at Sahapur Primary School situated at Panchla Block, Howrah. In respect of the present income tax proceedings, your petitioner is completely dependent upon her son Mr. Kuntal Koley, who is also a co-assessee.
Kalyani Koley 3. Your petitioner states that the son of your petitioner got married to Soniya Das in the year 2013. Unfortunately, on and form 2019, the wife of Mr. Kuntal Kumar Koley has been suffering from various ailments, which include critical mental problems, for which she has undergone various treatments. In the year 2021, the mental problems of the wife of Mr. Kuntal Kumar Koley were diagnosed as "Obsessive-Compulsive Disorder (hereinafter referred to as "OCD") and have undergone treatments for the same. She has also been suffering from severe anaemia and has also undergone continuous treatment. She has also under the "Cognitive Behavioural Therapy Treatment" (hereinafter referred.) to as "CBS"). Because of his wife's ill health, Mr. Kuntal Kumar Koley has undergone immense mental and financial pressure. Copies of the documents regarding the treatments of the wife of Mr. Kuntal Kumar Koley are annexed hereto and collectively marked "А 4. In the meantime, your petitioner received an order dated November 1, 2023 passed by the Commissioner of Income Tax (Appeals) through the National Faceless Assessment Centres. The said order was sent in the electronic mail id (hereinafter referred to as "email id") of your petitioner's son Mr. Kuntal Kumar Koley and the said Mr. Koley kept the same in the relevant file. Since your petitioner along with her son resided at the remote place of the Howrah District, it is not possible for the said Kuntal Kumar Koley to visit Kolkata immediately to visit their consultant's chamber. Mr. Koley was busy with his job as a primary school teacher and also with his ailing wife, who'also needed special care. Apart from the above facts, Mr. Kuntal Kumar Koley, being a layman, also misunderstood that even if the Commissioner (Appeals) dismissed the appeal filed by your petitioner, no demand of income tax could arise in your petitioner's case since in the order dated November 1. 2023 it was mentioned that "Tax/Penalty/Fine/Interest Demanded" is Rs.0/-. Your petitioner states that in this situation Mr. Koley had planned to visit Kolkata during the second week of December, 2024 for a consultation with their tax consultant.
5. Your petitioner states that unfortunately, during the second week of December, 2024, your petitioner's health started deteriorating as she suffering from chest pain and vertigo and on December 15, 2024 she was taken to the doctor. After examining her, the doctor advised her to take complete rest. In such a situation, Mr. Koley was completely perplexed and it was very difficult for him to manage everything single-handedly. On the one hand he had to take care of two ailing ladies apart from the everyday household work, such as, cooking, washing cloths and utensils etc. and on other hand he had to manage his job. He had no time to take rest/sleep and was under tremendous mental. physical and financial pressures. In such situation, it was gone completely out of his mind to contact with the consultant in respect of the order dated November 1, 2023. In this process the last date for filing of appeal had expired on December 31, 2023. In this situation, copies of the doctor's prescription in respect of your petitioner's treatment are annexed hereto and collectively marked "B".
Your petitioner states that the New Year did not bring any new hope as she as well as her daughter-in-law had continuously suffering from various ailments. During the entire year 2024 your petitioner and her daughter in law were continuously under the treatment of Doctors and the suffering of Mr. Koley continues. As such, the said Mr. Koley, during the entire year 2024 was busy with his job as a teacher and the treatments of the two ailing ladies. Since no notice had come during the entire year 2024, the factum of receipt of the order dated November 1, 2023 had gone completely out of mind of the said Mr. Koley. Copies of the documents relating to the treatment of your petitioner and her daughter-in-law during the year 2024 are already annexed in annexures "A" and "B" hereinbefore.
Your petitioner states that the said Mr. Koley was surprised to receive a purported notice dated January 2. 2025 issued under section 274 read with 271(1)(c) of the Act for the assessment year 2013-14 in the case of your petitioner. After going through the annexure of the said notice, he understood that since the Commissioner (Appeals), by the said order dated November 1, 2023, dismissed the appeal filed by your petitioner, said penalty notice was issued by the National Faceless Assessment Centre, Delhi. By the said notice dated January 2, 2025, your petitioner was required to submit reply by January 9, 2025. After receiving the said notice the said Kuntal Kumar Koley went to Kolkata on January 7. 2025 to meet the consultant, who, after going through the said notice, advised him to take adjournment in the matter. Accordingly, your petitioner sought adjournment in the portal. In response to the query of the said consultant as to whether any appeal had been filed against the said appellate order dated November 1. 2023, the said Mr. Kolay informed that it had completely gone out of his mind about the receipt of the said order and no steps had been taken in respect to the said order. The said consultant requested the said Mr. Koley to hand over all the relevant documents in respect of the said appellate order as early as possible.
By another notice dated January 10, 2025, the National Faceless Assessment Centre granted time to file response in respect of the said penalty proceedings and in the said notice it was categorically stated that no further opportunity could be granted. Your petitioner states that the said Mr. Koley, after receiving the said notice dated January 10. 2025, went to the chamber of the said consultant on January 14, 2025 along with relevant documents and requested him to prepare a submission in Kalyani Koley respect of the said penalty proceedings. The said consultant, after going through the documents, advised that apart from the filing of submission in respect to the said penalty proceedings, your petitioner should have to file an appeal before this Hon ble Tribunal against the said appellate order dated November 1, 2023 along with an application for condonation of delay. Mr. Kuntal Kumar Koley, during the said conference held on January 14, 2025, instructed the said consultant to file response in respect of the penalty proceedings and also file appeal before this Hon'ble Tribunal.
Your petitioner states that the said consultant, on January 17, 2025, completed the said written submission in respect to the said penalty proceedings and uploaded the same in the portal as instructed by the said Mr. Koley. The said consultant on the same day, that is, on January 17, 2025, requested the said Mr. Kolay to give further documents in respect of the assessment records in respect of the other co-owners. The said Mr. Koley. on January 20, 2025, handed over the said documents to the said consultant. On January 23, 2025, the said advocate handed over the drafts of the appeal and condonation application to Mr. Kolay. After going through the said draft, Mr. Koley approved the same on January 24, 2025. Thereafter, on January 25, 2025, the said consultant took printouts, arranged the annexures and filed the same on January 29, 2025 with a delay of 394 days.
10. In the circumstances aforesaid, there has been a delay of 394 days in preferring the instant appeal. Your petitioner states that it was prevented by sufficient cause from preferring the appeal within the period prescribed by the statute. Your petitioner is a 65 year old widow suffering from various ailments and is completely dependent on her son in respect of the banking and other official work including the present income tax proceedings. Her son Mr. Koley, who is a school teacher, was completely burdened with the ailments of his mother and wife and for the said reason it went completely out of his mind of the fact of receipt of the said order dated November 1, 2023 passed by the Commissioner (Appeals). Once he realised his said fault, in the first week of January 2025, he took immediately all the steps to file the appeal as early as possible.
11. Your petitioner states that it has a very strong case on merits. There has been no negligence or laches on your petitioner's part and your petitioner has been bonafide and diligently pursuing the matter. The delay in preferring the instant appeal was occasioned by circumstances completely beyond your petitioner's control.
12. In the circumstances aforesaid, it is just, reasonable and proper that the delay of 394 days that has occurred in preferring the instant appeal be condoned. Unless the delay that has occurred in preferring the appeal is condoned, your petitioner will suffer irreparable loss and prejudice.
13. This application is made bonafide and in the interest of justice.
13. This application is made bonafide and in the interest of justice. In the circumstances, your petitioner most humbly prays for- (a) Condonation of delay of 394 days in preferring the appeal against the order dated November 1, 2023 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, for (b) the assessment year 2013-14; Such further or other order or orders be made and/or directions be given as would afford complete relief to your petitioner. And your petitioner, as in duty bound, shall ever pray.” 1.1 Considering the reasons given in the said petition, we condone the delay and admit the case for adjudication.
2. This appeal arises from order u/s 250 of the Income Tax Act, 1961 (hereafter “the Act”) dated 01.11.2023, passed by the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereafter “the Ld. CIT(A)”].
Kalyani Koley 2.1 The main issue revolves around a claim of short term capital loss of Rs. 19,038/- arising from sale of co-owned land, of which she was 1/16th owner. The Ld. AO/CIT(A) held the issue against the assessee on the ground that she was not able to establish the exact cost price of the said land and hence the Ld. AO’s addition on account of long term capital gain at Rs. 7,66,235/-, was sustained by the Ld. CIT(A).
2.2 Aggrieved with this, the assessee has approached the ITAT with the following grounds:
“1. For that the CIT(Appeals) was not right in law in deciding the appeal filed by the assessee without affording her any opportunity of hearing and his order dated November 1, 2023 is illegal, invalid, bad in law and the same was passed in gross violation of the principles of natural justice.
For that further and in any event and without prejudice to the aforesaid the CIT(Appeals) failed to consider that the purported proceedings initiated under section 148 of the Income Tax Act, 1961 (in short "the Act") are wholly without jurisdiction and illegal and are liable to be set aside and or quashed.
3. For that further and in any event and without prejudice to the aforesaid the CIT(Appeals) failed to consider that the purported notice under section 148 of the Act was issued beyond the period of limitation as stipulated under section 149(1)(b) of the Act, as a stood prior to amendment by the Finance Act, 2021, and the same should not be proceeded with as the Assessing Officer did not have any jurisdiction to issue such notice beyond the period of limitation 4. For that CIT(Appeals) failed to consider that the purported proceedings initiated under the Act for the assessment year 2013-14 and the purported notice issued under section 148 of the Act dated March 31, 2020 is wholly illegal and invalid and without and/or in excess of jurisdiction and is liable to be set aside.
5. For that the CIT(Appeals) failed to consider that after March 31, 2020, no proceeding under sections 147/148 of the Act was or is permissible for the assessment year 2013-14 under the reassessment provisions. For that the CIT(Appeals) failed to consider that since the notice under section 148 was barred by limitation, consequential Assessment Order dated March 16, 2022 passed under section 147 read with section 144B of the Act did not survive and the same is liable to be set aside on this ground alone.
7. For that further and in any event and without prejudice to the aforesaid the CIT(Appeals) erred in upholding the addition of Rs.7,66,235/- as Long Term Capital Gain as made by the Assessing Officer and his purported findings in this regard are arbitrary, unreasonable and perverse.
8. For that the CIT(Appeals) failed to consider that the assessee had correctly computed the Long Term Capital Loss at Rs.19040/- after taking the cost of acquisition at Rs.1,34,02,000/- as per the report of Registered Valuer.
Kalyani Koley 9. For that the CIT(Appeals) failed to consider that in the assessment of the co- owners of the property under consideration, including the son of the assessee who enjoyed the 1/16th share of the property along with the assessee, the Assessing Officer had duly taken into account the cost of acquisition at Rs.1,34,02,000/- as determined by the Registered Valuer and accepted the Long Term Capital Loss declared by the co-owners and his purported findings in this regard are arbitrary, unreasonable and perverse.
For that the CIT(Appeals) failed to consider that the Assessing Officer failed to appreciate that in the case of one co-owner, namely, Smt. Bela Ghosh the DVO calculated the fair market value of the property at Rs.56,54,783/- and the Assessing Officer should have taken the said valuation of Rs.56,54,783/- as the sale consideration of the said property for the purpose of determining Capital Gain or Loss.
For that the CIT(Appeals) failed to consider that the said purported notice dated March 31, 2021 was issued without obtaining the requisite approvals of the specified authority as per the provisions of section 151(1) of the Act and the said notice was issued in violation of law and thus, void ab initio.
For that the CIT(Appeals) have failed to consider that a copy of the purported approval, if any, passed by the specified authority should have been made over to the assessee and in the absence thereof, it can be safely assumed that the Assessing Officer is merely conducting a fishing and roving enquiry which is in gross violation of the principles of natural justice and the provision of law.
For that further and in any event and without prejudice to the aforesaid the CIT(Appeals) failed to consider that the purported approval, if any, given by the specified authority was and is wholly illegal and invalid.
For that the said Order dated November 1, 2023 passed by the CIT(Appeals) is otherwise erroneous on facts and/or in law.”
Before us the Ld. AR averred that in the case of 3 other co-owners the AOs therein had accepted the calculation of capital gain/loss on the same set of facts. It was pointed out that in the case of the assessee’s son also the assessment had been completed on the basis of computation done by them. The Ld. AR pointed out the assessment orders of the son (at pages 137 to 141 of the paper book) and two others (Kumud Ranjan Koley and Bela Ghosh) at pages 149 to 154 and 180-184 of the paper book. It was averred that the present case should be dealt with on same footing as the earlier cases of other co-owners.
3.1 The Ld. DR relied on the orders of authorities below.
We have heard the Ld. AR/DR and gone through the documents Kalyani Koley before us. We find that indeed in the cases of 3 other co-owners, including the son of the assessee, the AOs have accepted the computation of capital gain or loss as presented before them. Thus, in the interest of consistency, and since the facts remain the same, we direct the deletion of impugned addition made by the Ld.AO. Accordingly, the assessee succeeds with respect to the substantive grounds of appeal
being 7, 8, 9 and 10. The remaining grounds are not being adjudicated as the assessee has succeeded on the quantum matter itself.
In result, appeal of the assessee is allowed.