PRAVIN BABANRAO TAMBE,PUNE vs. PRINCIPAL COMMISSIONER OF INCOME TAX-4, PUNE, PUNE

at the time of hearing.”

3. Facts of the case, in brief, are that the assessee is an individual and has not furnished his return of income for the period under consideration. The Income Tax Department received the information that the assessee along with other co-owners has sold an immovable property for a total consideration of Rs.4,24,00,000/-. However, the market value of the above property for stamp duty purposes was Rs.7,17,10,000/-. The Assessing Officer, therefore, issued a notice u/s 148 on 19.03.2018 as he has reason to believe that the assessee’s income for the year under consideration has escaped assessment. The assessee in response to the above notice furnished his return of income on 19.12.2018 declaring a total income of Rs.14,52,720/- which consists of long term capital gain of Rs.12,66,673/-. Notices u/s 143(2) and 142(1) were also issued Shri Anand Birla CS duly authorized by the assessee and various details called for were furnished. The Assessing Officer completed the assessment u/s 143(3) r.w.s. 147 on 24.12.2018 by accepting the returned income and determined the total income at Rs.14,52,720/-. Subsequently, Ld. PCIT observed that the assessee had submitted the working of capital gains of total sale consideration of Rs.7,17,10,000/-. The assessee had deducted an amount of Rs.34,29,429/- i.e. 1/3rd of Rs.1,02,88,286/- towards expenses paid to one Mr. Shevale for acquiring access for entry into the land. Expenses incurred for acquiring access outside the land sold cannot be considered as expenses incurred for the purpose of claiming deduction u/s 48. According to him, the genuineness of the payment of expenses incurred by the assessee is also not verified by the Assessing Office & this expense does not fall under eligible deductions, therefore the same should have been disallowed by the AO. This has resulted short computation of capital gain of Rs.34,29,429/-. Apart from this, it was also noticed by Ld. PCIT, that the Assessing Officer has levied interest of Rs.20,644/- only instead of correct amount of interest of Rs.1,59,997/-. Accordingly, Rs.1,39,353/-. For all these reasons , Ld. PCIT was of the view that the assessment order passed by the Assessing Officer u/s 143(3) r.w.s. 147 dated 24.12.2018 is erroneous in so far as it is prejudicial to the interests of the Revenue to the above extent. Hence, the provisions of section 263 were invoked and a notice was issued to the assessee to submit written submissions, if any in this regard. The said notice was returned by postal authority with the remark “refused”. However, the assessee requested for adjournment vide his letter dated 24.03.2021. The said notice was again sent to the assessee giving him another opportunity to submit his written submission by 30.03.2021. This notice was also returned by postal authority with the remark “refused”. However, the assessee has furnished his written submission on 30.03.2021. After considering the written submission of the assessee, Ld. PCIT vide order dated 31.03.2021 set-aside the order passed by the Assessing Officer by observing as under :- “4. I have carefully considered the submissions made by the assessee, as per the provisions of Section 48 of the Income Tax Act, 1961, the income chargeable under the head Capital gains shall be computed, by deducting from the full value of the consideration received or accruing (i) Expenditure incurred wholly and exclusively in connection with such transfer (ii) The cost of acquisition of the asset and the cost of any improvement thereto. The assessee has incurred the expenses not in connection of the transfer or any improvement of the such land. Expenses are incurred for acquiring access outside the land sold and hence contention of the assessee can not be acceptable. It is also revealed from the record that the AO has not properly dealt with the facts of the case. The AO has also not verified the genuineness of the payment made by the assessee for the expenditure.

5. Thus in view of the para 4 above it is clear that during the course of assessment proceedings for the A.Y. 2011-12, the issue was not properly dealt with by the assessing officer. i.e. The order passed has been passed without verification of the relevant documents of the assessee. Hence the assessment order for the A.Y. 2011-12 is erroneous in so far as it is prejudicial to the interests of Revenue. 5.1 In view of the aforesaid, the assessment completed u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 dated 21/12/2018 erroneous in so far as it is prejudicial to the interests of the Revenue to the above extent. Explanation 2 to Section 263 reads as under For the purposes of this section, it is hereby declared that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the Revenue, if, in the opinion of the Principal Commissioner or Commission. (a) The order is passed without making inquiries or verification which should have been made (b) The order is passed allowing any relief without inquiring into the claim (c) The order has not been made in accordance with any order, direction or instruction issued by the Board under section 119, or (d) The order has not been passed in accordance with any decision, prejudicial in the assessee, rendered by the Jurisdictional High Court or Supreme Court in the case of the assessee or any other person Thus, the provisions of Section 283 of the Act are rightly invoked in this case. 5.2 Reliance can be placed on the decision in the case of Gee Vee Enterprises vs. Add CIT 1975 CTR (Del) 61 (1975) 90 ITR 375 (Del), CIT vs. South India Shipping Corp. Ltd. (1998) 147 CTR (Mad) 433 (1996) 233 ITR 546 (Mad). CIT V. M.M. Khambhatwala (1992) 195 ITR 144 (u), CIT v. Shree Manjunathesware Packing Products & Camphor Works, 231 ITR 53.

7. Therefore, in view of the above facts, the assessment order u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 dated 21/12/2018 is hereby set aside on the above issues to the file of the assessing officer. The AO is directed that the assessment order should be reframed as per the provisions of law, after considering proper facts and submissions of the assessee and also for necessary verification in the light of the observations made above, after affording proper opportunity to the assessee within the time allowed under the Income-tax Act, 1961.”

6. Ld. DR appearing from the side of the Revenue strongly opposed the request made by the assessee. Ld. DR submitted before the Bench that the original assessment order in this case was passed on 24.12.2018 u/s 143(3) r.w.s. 147 of the IT Act. Thereafter, Ld. PCIT invoked the provisions of section 263 of the IT Act and after considering the written submissions of the assessee, he set-aside the order passed by the Assessing Officer being erroneous and prejudicial to the interest of the Revenue and directed the Assessing Officer by impugned order dated 31-03-2021 to pass consequential assessment order afresh in the light of his observation. The assessee did not chose to file any appeal against the impugned order dated 31-03-2021 although he was having services of qualified professionals. Subsequently the consequential order pursuant to the direction issued by Ld. PCIT u/s 263, i.e. the fresh assessment order u/s 147 r.w.s. 263 was passed on 24.03.2022. It was specifically pointed out by Ld. DR that the assessee participated in this consequential reassessment proceedings through qualified representative wherein written submissions were furnished by the assessee and after considering the contentions of the assessee, the orders were passed by-parte wherein the assessment was completed on a total income of Rs.46,96,100/- as against the original assessed income u/s 143(3) r.w.s. 147 of the IT Act at Rs.14,52,720/-. It was further submitted by Ld. DR that this consequential order was passed on 24.03.2022 & till this date as per the affidavit of the assesse himself he was under the impression that he will get a favourable order & there will be no demand in the consequential assessment order therefore he did not chose to file any appeal against the impugned order dated 31-03-2021 passed u/s 263 of the IT Act by Ld. PCIT. It was only on 30-05-2023 i.e. exactly after 433 days when the consequential assessment order was passed by the Assessing Officer on 24.03.2022, the assessee thought to challenge the previous order passed by Ld. PCIT u/s 263 of the IT Act with huge delay. It was submitted by Ld. DR that it is not the case of simple delay but a case of change of opinion, wherein the assessee thoughtfully decided not to file appeal against the impugned order & only when the consequential order was passed against him he came before this Tribunal. Accordingly, Ld. DR objected to condone the delay since the assesse failed to provide any 730/ 366 days. It was submitted by Ld. DR that the assessee himself has admitted the fact that he has already filed an appeal against the consequential assessment order which was passed on 24.03.2022. Now, if this Tribunal condones the delay then the exercise done by the Assessing Officer will become futile, and we are not leaving the assessee remedy-less since he is already exercising alternative remedy i.e. in the shape of an appeal which has already been filed by him before Ld. CIT(A) against the consequential assessment order. Accordingly, it was submitted that the interests of the assessee are very well secured before Ld. CIT(A). Accordingly, it was prayed by Ld. DR that the delay should not be condoned and the appeal may kindly be dismissed on this short issue.

8. From a perusal of this affidavit which was attested on 16.06.2023, we find that the deponent has signed this affidavit on 17.06.2023 at Pune whereas the notary has attested the same affidavit on 16.06.2023, therefore prima-facie there is discrepancy in the dates mentioned on the affidavit. However, we accept this error as a typographical error.

9. In its second version of the assessee which is supported by another affidavit which is attested on 19.09.2024 it was stated by the assessee that the assessee is living with his brother Shri Amol Tambe, who was suffering from liver disease since 2021 and eventually he expired on 11.07.2023. Therefore, the assessee was not able to look after the business affairs including the tax matters. It is worthwhile to mention here that in this case various hearings took place and when it was told to the counsel of the assessee that the Bench is not willing to condone the delay the counsel of the assessee sought adjournment and furnished this another affidavit wherein the ground of death of his brother was opted. We have given our thoughtful consideration on the contentions raised in both the affidavits and we are of the considered opinion that the assessee has not explained any sufficient reason which prevented him for not filing the appeal with in time, instead it appears an afterthought since the assesse was always represented by qualified representatives & waited for the outcome of the consequential assessment order & when his contentions were not accepted by the Assessing officer & the assessment order resulted in demand, he chose to file this appeal belatedly against the impugned order pursuant to which the consequential assessment order was passed. We further observe that the assesse has taken part & duly appeared in consequential assessment proceedings through a qualified representative, which itself proves that the assessee has accepted the impugned order passed by Ld. PCIT u/s 263 of the IT Act & subsequently changed his mind & filed the appeal belatedly without any reasonable cause. Regarding the shelter due to the death of his brother we find that the impugned order was passed on 31-03-2021 & the extended time was also over on 30-05-2022, the assesse was taking part in consequential assessment proceedings but was not having time to file the appeal against the impugned order.

“5. We have heard both the parties and considered the petition filed by the assessee for condonation of delay of 581 days. We have also carefully considered the reasons given by the assessee for delay in filing of the appeal. We find that prima facie the reasons given by the assessee, in her Affidavit for condonation of delay of 581 days, seems to be not bona fide. Further, in the petition filed for condonation of delay, the assessee claimed that she was not aware of law that an appeal can be filed against the order of the PCIT u/s.263 of the Act, and further, an advice from the Counsel, Mr.T.Banusekar, CA, she came to know that there is a provision to file appeal against the revision order and thus, she took decision to file appeal, which caused delay of 581 days. We have gone through the Affidavit filed by the assessee and also examined sequence of events and after considering necessary facts, we are of the considered view that the reasons given by the assessee in her Affidavit is not bona fide, because, the assessee has very well represented her case through an Authorized Representative before the AO and also before the PCIT during revisional proceedings. She had been represented by Mr.Chandanmal Jain, CA, before the Income Tax Officer. During the course of revision proceedings, she had also engaged the same CA to appear before the PCIT under 263 proceedings. Therefore, we are of the considered view that when she was capable of engaging a professional for appearing before two different authorities at two different points of time, it is impossible to believe her version that she was not aware of filing of the appeal against 263 order within the due date prescribed under the provisions of Income Tax Act, 1961. We further noted that in her petition, she claimed, she met Mr.T.Banusekar, CA, to seek his services for representing the case before the CIT(A) in connection with the appeal filed by the assessee against the order u/s.143(3) r.w.s.263 of the Act. Therefore, from the above, what is clear is that she is an educated person, aware of Income Tax proceedings, including filing of the appeal against the order of the AO. Further, from the contents of the petition filed by the assessee for condonation of delay, what we could understand is that the assessee has chosen not to file the appeal against the order of the PCIT u/s.263 of the Act, because, she can pursue an alternative remedy available with her and represent her case before the AO on the belief that she can get a favourable order from the AO. Once, the assessment order passed by the AO, went against the assessee, then she consulted a different professional, who advised her to file the appeal against the order of the PCIT u/s.263 of the Act, which is clearly evident from the fact that in all proceedings, including assessment proceedings before the AO and revision proceedings before the PCIT and consequential assessment proceedings before the AO, she had appeared through her Authorized Representative and filed necessary details. Therefore, from the above sequence of events, it is very clear that subsequent filing of the appeal against the order of the PCIT passed u/s.263 of the Act, is only an afterthought, but not a case of ignorance of law or unaware of provisions in filing of the appeal before the Tribunal against the order of the PCIT u/s.263 of the Act. Therefore, we are of the considered view that there is no merit in the reasons given by the assessee in her petition for condonation of delay in filing of the appeal.

6. Be that as it may. Coming back to the legal position evolved by the decision of various High Courts, including the Hon’ble Supreme Court in number of cases, where it has been, time and again, held that when merits and technicalities pitted against each other, then merit alone deserves to be prevailed, because, if you throw out a meritorious case out of judicial scrutiny on the grounds of technicalities, then you may deprive the right of the petitioner in pursuing their case. At the same time, various Courts have held that rules of limitation are not meant to destroy the rights of parties, they are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly, within the time bound prescribed under the Act. Further, in a case, where, for the reasons beyond the control of the petitioner, the appeal could not be filed, then the Courts are well equipped with power to condone the delay, if the petitioner explains the delay in filing of the appeal with a reasonable cause. However, there is no law or mandate in the Act, to condone the delay in each and every case. But, it depends upon all facts of each case and the reasons given by the parties for condonation of delay. Therefore, one has to go by the facts of its own case and the reasons given by the petitioner for condonation of delay. In this case, on perusal of reasons given by the assessee for delay in filing of the appeal, we find that although it appears, the assessee is not deriving any benefit by not filing the appeal within the due date prescribed under the Act, but, from the contents of petition filed by the assessee, we could easily make out a case that the assessee has made an afterthought to file the appeal against the order of the PCIT u/s.263 of the Act, only when she did not get a favourable order from the AO, consequent to the order passed by the PCIT u/s.263 of the Act. Therefore, in our considered view, for these vague reasons, such huge delay of 581 days in filing of the appeal, cannot be condoned.

7. As regards, the case law relied upon by the assessee in the case of Mr.Imam Syed Abdul Kamal Nazar v. ITO in dated 02.06.2022, as we have already stated in earlier part of this order, condonation of delay, has to be examined based on facts of each case. However, it does not depend upon observations of any Court or Tribunal in some other case. Although, in the case law referred by the Ld.Counsel for the assessee, the Tribunal has condoned the delay of 486 days in filing of the appeal, but the said findings of the Tribunal is based on facts of those case and as per the facts of the above case, the assessee himself had represented his case before the PCIT through his Accountant without any help from Professional or /Chartered Accountant or /Advocate. Under those facts, the Tribunal came to the conclusion that although the ignorance of law is not an excuse, but it cannot be expected from each person to know laws of this country. In so far as the arguments of the Ld.Counsel for the assessee, in light of decision of the Hon’ble Supreme Court in the case of Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh & Ors.(supra) that ignorance of law is also an excuse, but if you examine the facts of the present case, we are of the considered view that the assessee is not ignorant of law, because, she was well aware of the Income Tax proceedings and further, hired professional Chartered Accountant, for representing her case. Therefore, we are of the considered view that the assessee cannot claim that she was ignorant of law and because of her ignorance, she could not file appeal against the order of the PCIT u/s.263 of the Act. Thus, we are of the considered view that the case laws relied upon by the assessee, are not applicable to the facts of the present case.