VAIBHAV VISHWANATH SURVE,RATNAGIRI vs. INCOME TAX OFFICER, RATNAGIRI

PDF · subscribers
ITA 2423/PUN/2024Status: DisposedITAT Pune21 January 2025Bench: DR.MANISH BORAD (Accountant Member), SHRI VINAY BHAMORE (Judicial Member)7 pages

In favour of the assessee: the assessee's appeal was allowed. From the AI summary of this appeal.

AI SummaryAllowed

What did the Tribunal hold?

The Tribunal condoned the delay of 111 days in filing the appeal before the CIT(A), citing the principles laid down by the Hon'ble Supreme Court in Collector Land Acquisition Vs. MST Katiji (1987) 167 ITR 471 SC. The Tribunal emphasized that refusing to condone delay can defeat the cause of justice, and substantial justice should be preferred over technical considerations. Consequently, the finding of the CIT(A) was set aside. The Tribunal remitted the issues on merit to the file of the Jurisdictional Assessing Officer (AO) to decide the case denovo. The AO was directed to refer the matter to the DVO for valuation. The assessee was cautioned to remain vigilant and avoid unnecessary adjournments. The grounds of appeal were allowed for statistical purposes.

What were the facts?

The assessee, Vaibhav Vishwanath Surve, is an individual who did not file an income tax return for Assessment Year 2010-11. The Assessing Officer (AO) initiated reassessment proceedings under section 147 based on information that the assessee sold an immovable property for Rs.1,33,33,333/-, with his share being Rs.33,33,333/-. The AO obtained the sale deed from the Sub-Registrar, which showed a stamp duty valuation of Rs.61,64,000/-. Despite issuing notices, the assessee did not comply. The AO completed the assessment ex-parte under section 144, making an addition of Rs.61,64,000/- on account of long-term capital gain. The assessee's appeal before the National Faceless Appeal Centre (NFAC) was dismissed in limine due to a delay of 111 days.

What were the issues?

1. Whether the CIT(A)/NFAC erred in dismissing the appeal on the ground of delay in filing the appeal, contrary to the principles of substantial justice? 2. Whether the CIT(A)/NFAC erred in confirming the addition of Rs.61,64,000/- made by the AO on account of alleged capital gain on sale of agricultural land, without considering the assessee's submissions? Assessee's arguments: - The land was inherited agricultural land belonging to the HUF of the assessee's father. - The assessee fulfilled the conditions of Section 50C. - The land was in a Coastal Regulation Zone where construction was not permitted. - The AO erred in adopting the stamp duty valuation and in not referring the valuation to the DVO as per Section 50C(2). - The CIT(A)/NFAC dismissed the appeal without providing reasons for not condoning the delay. Revenue's arguments: - The assessee was indolent in pursuing the matter, and therefore, the CIT(A) was right in dismissing the appeal.

Which sections of the Income-tax Act were involved?

Section 144,Section 147,Section 133(6),Section 50C,Section 50C(2)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, PUNE BENCHES “B’, PUNE

Before: DR.MANISH BORAD & SHRI VINAY BHAMORE

For Appellant: Shri Pramod Shingte
For Respondent: Shri Arvind Desai

PER DR. MANISH BORAD, ACCOUNTANT MEMBER :

1.

1. This appeal filed by the assessee pertaining to the Assessment Year 2010-11 is directed against the order dated 21.09.2024 passed by the National Faceless Appeal Centre, Delhi [in short ‘NFAC’) which inturn is arising out of the Assessment order dated 16.11.2017 passed u/s.144 r.w.s.147 of the Act.

2.

Briefly, the facts of the case are that the assessee is an individual who has not filed the return of inform for the A.Y. 2010-11. Based on the information available with the Department that the assessee along with 3 others has sold an immovable property to M/s. Shri Abhay Mahendra Jain for sale consideration of Rs.1,33,33,333/- out of which share of the assessee comes to Rs.33,33,333/- as the assessee has not filed the return by disclosing the capital gain on the said transaction, ld. AO had reason to believe that the income chargeable to tax has escaped assessment. There was no compliance to the various notices issued by the AO. Ld. AO vide notice u/s.133(6) of the Act gathered the information from Sub-Registrar, Ratnagiri by calling the sale deed relating to the transaction. He noticed that the as per the sale deed executed on 16.06.2009 stamp duty valuation is Rs.61,64,000/- and the assessee received the sale consideration through Vijaya Bank, Oriental Bank of Commerce, Corporation Bank and Bank of Maharashtra. In the absence of any compliance from the side of assessee, ld. AO completed the assessment u/s.144 of the Act making addition of Rs.61,64,000/- on account of long term capital gain.

3. Dissatisfied assessee preferred appeal before the ld.CIT(A) but with a delay of 111 days. The ld.CIT(A) dismissed the appeal in limine by not condoning the delay.

4. Now the assessee is in appeal before us by raising the following grounds :

“1. On the facts and circumstances of the case and in law the CIT(A) NFAC erred in dismissing the appeal of the appellant on an incorrect ground of delay in filing the appeal.

2. On the facts and circumstances of the case and in law the CIT(A) NFAC erred in confirming the addition made by the ITO of Rs. 61,64,000/- on account of alleged capital gain on sale of agricultural land, without taking into account submissions made by the appellant in this respect. The appellant prays that the AO be directed to deleted the addition. The appellant craves leave to add to, amend, alter, delete or modify all or any of the above ground of appeal or raise a new ground of appeal before or at the time of hearing.”

5. Before us, Ld. Counsel for the assessee submitted that the land in question is an inherited agricultural land which belonged to HUF of the assessee’s father. The grand father of the assessee was one of the co-owner along with two brothers. The grand father of the assessee had four sons. In the year, 2007, the entire land was agreed for a consideration of Rs.4.00 core which was materialized on 16.06.2009. The share of the assessee’s father comes to Rs.33,33,333/-. It is submitted that assessee fulfills the conditions of provisions of section 50C of the Act. Further, the land is situated in Coastal Regulation zone and construction is not permitted. The AO erred in computing the capital by adopting the stamp duty valuation. The AO also erred in not referring the valuation of the property to the DVO as envisaged u/s.50C(2) of the Act. Further, he submitted that ld.CIT(A) has dismissed the appeal in limine, without specifying any reasons for not condoning the delay.

6. On the other hand, ld. Departmental Representative supported the orders of the lower authorities. He submitted that the assessee is indolent in pursuing his matter. Therefore, the ld.CIT(A) was right in dismissing the appeal.

7.

We have heard both the sides and perused the record placed before us. It is an admitted position that the assessee has neither participated in the proceedings before the AO or even before the ld.CIT(A) which led to passing the orders exparte. From the perusal of the impugned order, prima-facie it appears that neither the assessee has attributed any reasons for delay nor the ld.CIT(A) gave any reasoned finding while not condoning the delay. In this context, we would like to quote the judgment of Hon’ble Supreme Court in the case of Collector Land Acquisition Vs. MST Katiji (1987) 167 ITR 471 SC . In the said Judgment, their Lordships have given certain principles based on which, the issue with regard to the delay can be approached and the said portion of the order of the Judgment cited supra is reproduced hereunder:

1.

Ordinarily, a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.

3.

Every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner.

4.

When substantial justice and technical considerations are pitted against each other, the 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.

5.

There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk.

6.

It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

In light of above, we are of the opinion that delay in the instant appeal deserves to be condoned. We therefore condone the delay of 111 days before the ld.CIT(A). In view thereof, without dwelling into merits of the case, the issues on merit are being remitted to the file of Jurisdictional Assessing Officer who shall decide the case denovo after referring the matter to the DVO. The assessee is also directed to remain vigilant and not to take adjournment unless otherwise required for reasonable cause, failing which the ld. AO shall be free to proceed in accordance with law. Finding of the ld. CIT(A) is set aside and Effective grounds of appeal raised by the assessee are allowed for statistical purposes.

8.

In the result, the appeal of the assessee is allowed for statistical purposes.

Order pronounced on this 21st day of January, 2025.

More judgments on Section 147

All 49,210 judgments and leading authorities on Section 147 →

Recent GST High Court judgments

Search GST case law →