Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A” BENCH, PUNE
Before: SHRI R.K. PANDA & MS. ASTHA CHANDRA
Assessment Year : 2013-14 Jayvanti Janardan Bhanuskar, Assistant Commissioner of At Koproli Post, Koproli, Tal. Pen, Income Tax, Circle, Panvel Raigad, Maharashtra-402107 Vs. PAN : AXSPB9235B अपीलार्थी / Appellant प्रत्यर्थी / Respondent Assessee by : Shri Akash Kumar Department by : Shri Ramnath P Murkunde Date of hearing : 17-07-2025 Date of 12-08-2025 Pronouncement : आदेश / ORDER
PER ASTHA CHANDRA, JM :
The appeal filed by the assessee is directed against the order dated 31.01.2024 of the Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi [“CIT(A)”] pertaining to Assessment Year (“AY”) 2013-14.
There is a delay of 363 days in filing of this appeal before the Tribunal for which the assessee has filed an application for condonation of delay along with a sworn affidavit explaining the reasons for such delay. On perusal of the same, we are satisfied that the delay in filing of appeal is not intentional or deliberate but has occurred for the reasons mentioned in the affidavit. After hearing both the sides, we are of the view that the delay is attributable to the sufficient cause. 2.1 We find the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. (1987) 167 ITR 471 (SC) has held that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As 2.2 We find recently the Hon'ble Supreme Court in the case of Inder Singh Vs. The State of Madhya Pradesh reported in 2025 LiveLaw (SC) 339 has held as under: “14. There can be no quarrel on the settled principle of law that delay cannot be condoned without sufficient cause, but a major aspect which has to be kept in mind is that, if in a particular case, the merits have to be examined, it should not be scuttled merely on the basis of limitation.”
2.3 Considering the totality of facts and in the circumstances of the case and respectfully following the above decision(s) of the Hon'ble Supreme Court, we hereby condone the delay in filing of the appeal and admit the same for adjudication.
The assessee has raised the following grounds of appeal :-
1. The Commissioner of Income-tax (Appeals) at the National Faceless Appeal Centre (hereinafter referred to as the CIT(A)) erred in framing an ex-parte order. The appellant contends that on the facts and in the circumstances of the case and in law, the CIT(A) ought not to have framed an ex parte order.
2. The CIT(A) erred in not deciding the following grounds of appeal on merits-
1. The Learned Assessing Officer referred as Ld. AO has wrongly treated the entire government value of immovable property registered on 29/01/2013 with Sub-Registrar Office, Sudhagad having valuation of INR 1.28.26,000/-ax sale consideration hence taxed the same as undisclosed capital gain.
2. The Ld. AO has erred in facts and circumstances of the case and has considered the government value which was INR 1,28,26,000 for the tax purpose instead of the actual sale consideration of the immovable property, which was INR 21,17,500.
3. The Ld. AO has erroneously considered the assessee as the only owner of the associated Immovable property, whereas in fact there were total 13 co-owners of the property including assessee as per sale agreement.
4. The Ld 40 has wrongly considered the facts and circumstances of case and issued the notice only to the assessee regarding the concealment of income from sale of immovable property, whereas the share of the assessee in the sale consideration was nil which justifies that assessee has no concealed income to show.
5. The Ld. AO has issued penalty notice u/s-271(1)(c) for concealing income from sale of immovable property, notice u/s-271(1)(b) for non- compliance of the notices and also issued penalty u/s- 271F for non filing of Return of Income. The Ld. AO has wrongly considered the facts and circumstances of case and levied penalty for concealment of income u/s 271(1)(c), whereas the AY 2013-14 assessee had no share in sale consideration of immovable property, so the penalty become inapplicable. Further, the assessee being a uneducated senior citizen, having no knowledge of compliances and filings shall be condoned for not responding to the notices and hence the penalty u/s 271(1)(b) should be dropped. Also, assessee having no taxable source of income, becomes ineligible for filing return of income and hence the penalty for non-filing of return of income u/s 271F shall be dropped". The appellant contends that on the facts and in the circumstances of the case and in law, the CIT(A) ought to have disposed of the aforesaid grounds of appeal on merits. The appellant craves leave to add to, alter or amend the aforestated grounds of appeal.”
4. Briefly stated the facts are that the assessee is an individual. She has not filed her return of income for AY 2013-14. The case of the assessee was reopened by issue of notice u/s 148 of the Income Tax Act, 1961 (the “Act”). In response to the said notice, the assessee failed to file its return of income and also did not comply with statutory notices issued u/s 142(1) of the Act. The Ld. Assessing Officer (“AO”) therefore completed the assessment u/s 147 r.w.s. 144 of the Act on 27.09.2021 by making addition of Rs.1,28,26,000/- on account of undisclosed capital gain on sale of immovable property by the assessee by observing as under: “8. During the course of assessment proceedings, it is noticed that during the financial year 2012-13 relevant to assessment year 2013-14, the assessee has sold an immovable on a consideration of Rs.1,28,26,000/- The said transaction is found to be registered with Sub-Registrar Office, Sudhagad on 29.01.2013. However, the assessee has not disclosed said transaction by filing her return of income for the relevant assessment year. During the assessment proceedings, the assessee neither submitted any details nor complied with the statutory notices. Therefore, in absence of any details or compliance from the assessee, the entire sale consideration of Rs.1,28,26,000/- remain undisclosed. Further, the assessee has also not filed any details to quantify Gain, Capital Gain for Profit arising out of aforesaid sale consideration. Therefore, absence any details in respect of Purchase Consideration, Transfer Expenses and other relevant expenses, the entire sale consideration of Rs.1,28,26,000/- is hereby treated as undisclosed capital gain of the assessee. Penalty proceedings u/s 271(1)(c) of the Act are separately initiated for concealing the particulars of income.”
5. Aggrieved, the assessee carried the matter before the Ld. CIT(A). The Ld. CIT(A) in his appellate order noted that various notices of hearing were issued to the assessee requiring the assessee to submit the details along with supporting documents/evidence in respect of her claim. However, neither any compliance was received nor any adjournment was sought by the assessee. In the absence of any response to the said notices, the Ld. CIT(A) observed that the assessee seems to be not interested in pursuing the appeal and therefore dismissed the appeal by observing as under:
AY 2013-14 “In this case, Notice was issued on 13.09.2022 to the appellant to furnish written submissions and documents on or before 20.09.2022. It was specifically stated in the said notice that if no submissions/ information/ documents were received within the stipulated time period, it would be presumed that the appellant had nothing to say in the matter and the department may proceed ahead based on material available on record. In view of the fact that no written submissions/ information/ documents were received from the appellant, nor any adjournment sought, another notice was issued on 22.09.2022 to the appellant to furnish written submissions, information and documents on or before 29.09.2022. It was specifically stated in the said notice that if no submissions/ information/ documents were received within the stipulated time period, it would be presumed that the appellant had nothing to say in the matter and the department may proceed ahead based on material available on record. In view of the fact that no written submissions/ information/ documents were received from the appellant, nor any adjournment sought, another notice was issued on 03.10.2022 to the appellant to furnish written submissions, information and documents on or before 10.10.2022. It was specifically stated in the said notice that if no submissions/ information/documents were received within the stipulated time period, it would be presumed that the appellant had nothing further to say in the matter and the appeal would be decided on merits on the basis of material available on record... In view of the fact that no written submissions/ information/ documents were received from the appellant, nor any adjournment sought, another notice was issued on 27.01.2023 to the appellant to furnish written submissions, information and documents on or before 06.02.2023. In view of the fact that no written submissions/ information/ documents were received from the appellant nor any adjournment sought, another notice was issued on 09.05.2023 to the appellant to furnish written submissions, information and documents on or before 16.05.2023. It was specifically stated in the said notice that if no submissions/ information/ documents were received within the stipulated time period, it would be presumed that the appellant had nothing to say in the matter and the department may proceed ahead based on material available on record. In view of the fact that no written submissions/ information/ documents were received from the appellant, nor any adjournment sought, another notice was issued on 22.09.2023 to the appellant to furnish written submissions, information and documents on or before 27.09.2023. It was specifically stated in the said notice that if no submissions/information/ documents were received within the stipulated time period, it would be presumed that the appellant had nothing further to say in the matter and the appeal would be decided on merits on the basis of material available on record.. In view of the fact that no written submissions/information/ documents were received from the appellant, nor any adjournment sought, another notice was issued on 07.11.2023 to the appellant to furnish written submissions, information and documents on or before 13.11.2023. It was specifically stated in the said notice that if no submissions/ information/ documents were received within the stipulated time period, it would be presumed that the appellant had nothing further to say in the matter and the appeal would be decided on merits on the basis of material available on record. In view of the fact that no written submissions/ information/documents were received from the appellant, nor any adjournment sought, one more notice was issued on 25.01.2023 to the appellant to furnish written submissions and documents on or before 30.01.2024. It was specifically stated in the said notice that if no submissions/information/documents were received within the stipulated time period, it would be presumed that the appellant had nothing to say in the matter and the department may proceed ahead based on material available on record. In view of the fact that no written submissions/ information/documents have been received from the appellant, nor any adjournment sought, the appeal is being decided on merits on the basis of material available on record. Despite repeated notices as delineated above, the appellant has not seen it fit to file any submissions, information or documents during appeal proceedings. The only material on record in this case is Form 35 filed by appellant and copy of assessment order dated 27.09.2021 filed by the appellant along with Form 35. The material on record has been carefully perused. There is no material on record to warrant interference in the order of the AO.
AY 2013-14 In view of the fact that there is no material on record to warrant interference in the is of Appeal are hereby dismiss order of the AO, the Grounds of Appeal are hereby dismissed.
5. As a result, the appeal is dismissed.”
Dissatisfied, the assessee is in appeal before the Tribunal and all the grounds of appeal relate thereto.
The Ld. AR submitted that the non-appearance/non-compliance before the Ld. CIT(A) was not deliberate as the notices were not received by the assessee. The assessee is a senior citizen who is uneducated and is not aware of the e-filing proceedings. He submitted that the assessee has a strong case on merits and given an opportunity the assessee is in a position to substantiate her case by filing the requisite details/ documentary evidence before the Ld. CIT(A)/NFAC. He, therefore, prayed that in the interest of justice, the matter may be restored to the file of the CIT(A) to decide all the issues raised by the assessee before him afresh after affording an opportunity of hearing to the assessee.
The Ld. DR, on the other hand, heavily opposed the arguments advanced by the Ld. Counsel for the assessee and submitted that despite number of opportunities granted, the assessee never bothered to make any submission before the Ld. CIT(A) NFAC. He accordingly submitted that the order of the Ld. CIT(A)/NFAC dismissing the appeal filed by the assessee should be upheld and the grounds raised by the assessee should be dismissed.
We have heard the Ld. Representatives of the parties and perused the material available on record. The impugned order has been passed by the Ld. CIT(A) ex-parte qua assessee. Before the Ld. CIT(A)/NFAC there was non- compliance of notice(s) of hearing and the Ld. CIT(A)/NFAC dismissed the appeal of the assessee for non-prosecution and endorsing the findings of the Ld. AO. The Ld. CIT(A)/NFAC has not adjudicated on the issues on merits. It is the submission of the Ld. Counsel for the assessee that given an opportunity, the assessee is in a position to substantiate her case by filing the requisite details/ documents before the Ld. CIT(A)/ NFAC and therefore he has requested for remand of the matter to the file of the Ld. CIT(A) for fresh adjudication on merits of the case. The appellate order reveals that the Ld. CIT(A)/NFAC has dismissed the appeal of the assessee for want of prosecution and non-filing of requisite details/ documentary evidence by the assessee. No doubt, the Ld. CIT(A)/NFAC may decide the appeal ex-parte where the assessee AY 2013-14 does not prosecute his appeal in spite of several opportunities. None-the-less, he has to adhere to the legislative mandate enshrined in sub-section (6) of section 250 of the Act which requires him to state the points for determination, the decision thereon and the reason for the decision. We observe that the Ld. CIT(A) has passed the order in concurrence of the order of Ld. AO without himself going into the merits of the case. Thus, in our view, his order is in violation of the provisions of section 250(6) of the Act.
Considering the totality of facts and in the circumstances of the case enumerated above, without going into the merits of the appeal, we deem it proper, in the interest of justice, to set aside the order of the Ld. CIT(A)/NFAC and restore the matter back to his file for adjudication afresh and pass speaking order on merits as per fact and law after allowing one final opportunity of being heard to the assessee. The assessee is also hereby directed to provide the requisite support in terms of submitting the relevant documents/ evidence as may be required/called upon on the appointed date and make his submissions without seeking any adjournment under any pretext, failing which the Ld. CIT(A)/ NFAC shall be at liberty to pass appropriate order as per law. We direct and order accordingly.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open court on 12th August, 2025.
Sd/- Sd/- (R.K. Panda) (Astha Chandra) JUDICIAL MEMBER VICE PRESIDENT पुणे / Pune; दिन ांक / Dated : 12th August, 2025. रदि आदेश की प्रधिधलधप अग्रेधर्ि / Copy of the Order forwarded to : अपील र्थी / The Appellant. 1. प्रत्यर्थी / The Respondent. 2. 3. The Pr. CIT concerned. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, “ए” बेंच, 4. पुणे / DR, ITAT, “A” Bench, Pune. ग र्ड फ़ इल / Guard File. 5. //सत्य दपि प्रदि// True Copy// आिेश नुस र / BY ORDER,
िररष्ठ दनजी सदचि / Sr. Private Secretary आयकर अपीलीय अदिकरण ,पुणे / ITAT, Pune