G. DAMODAR, SURYAPET,SURYAPET vs. ACIT, CIRCLE-3(2), HYDERABAD, HYDERABAD

Brief facts of the case are that a search and seizure operation u/s 132 of the Act was carried out in the case of M/s. MBS Jewellers Pvt. Ltd and its group of cases on 11.03.2010 during the course of which certain documents relating to the assessee, an individual, were found and seized. Therefore, a notice u/s 153C of the Act was issued to the assessee on 11.11.2011, in response to which, the assessee filed his return of

During the assessment proceedings u/s 143(3) of the Act, various details were called for and after considering the information filed by the assessee, the AO made an addition towards the capital gains and brought it to tax. Aggrieved, the assessee preferred an appeal before the CIT (A) challenging the addition. The CIT (A) however, rejected the appeal in limini on the ground that the assessee has failed to make payment of tax on the income returned before filing of an appeal against the assessment order, as it is a pre-condition for entertaining an appeal. Against the order of the CIT (A), the assessee is in appeal before us.

The learned Counsel for the assessee submitted that the assessee was facing financial difficulties due to which he could not make the payment of the admitted tax before filing of the appeal before the CIT (A) and has also drawn our attention to the contents of the affidavits filed by the assessee to explain the delay of 1032 days in filing of the appeal before the Tribunal wherein the above facts are also incorporated. He further submitted that the assessee has paid the admitted tax and thereafter has filed this appeal before the Tribunal and prayed for the condonation of the delay and adjudication of the appeal on merits.

The learned DR, however, opposed the condonation of the delay and submitted that the assessee was required to make the payment of tax on the returned income before filing of the appeal and since the assessee has failed to comply with the said condition, the appeal was rightly rejected by the CIT (A).

Having regard to the rival contentions and the material on record, we find that the assessee is mainly an agriculturist and has never been assessed to tax earlier. We find that the demand of tax has also arisen due to the sale documents found during the course of search in the case of MBS Jewellers according to which, the assessee had sold his agricultural land which was within the Municipal limits of GHMC. The assessee, in his affidavit, stated that to pay the tax on the returned income, the assessee had put his agricultural land at Miriyala Village to sale but the same could not be materialized and thereafter, the assessee had mobilsed the funds to pay a sum of Rs.4,63,000 on 17.02.2016 and the balance of Rs.7,00,000 on 13.2.2017 and only thereafter, the assessee could file the appeal before us.

The assessee has also filed a copy of the certificate issued by the Doctor to demonstrate that the assessee was immobile in the 3rd week of February due to severe back pain and was advised complete rest for one month. Since the assessee has paid the taxes on the returned income, though belatedly, in view of the circumstances mentioned in the affidavit and in the interest of justice, we deem it fit and proper to condone the delay of 1032 days in filing of the appeal before us and remand the issue to the

In the result, assessee’s appeal is allowed for statistical purposes. Order pronounced in the Open Court on 4th April, 2018.