Loading judgment…
Facts
The assessee's appeal was delayed by 181 days, attributed to a former consultant's inaction due to personal reasons. The assessment and first appellate orders were ex parte, leading to an addition of Rs. 45,68,687/- as long-term capital gain, where the Assessing Officer attributed the entire sale consideration of a co-owned property to the assessee.
Held
The Tribunal refused to condone the delay, citing the assessee's and consultant's carelessness and the assessee's non-appearance before authorities. However, to prevent 'grave injustice' due to the erroneous attribution of the entire sale consideration, the matter was remanded to the AO for fresh adjudication with an opportunity of hearing. The assessee was directed to pay Rs. 5000/- to the Prime Minister's Relief Fund for their non-serious attitude.
Key Issues
Whether the delay in filing the appeal should be condoned, and whether the ex parte assessment's addition of long-term capital gain, based on attributing the entire sale consideration of a co-owned property to the assessee, was justified.
Sections Cited
250, 144, 144B
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “D” BENCH, AHMEDABAD
Before: SHRI SANJAY GARG & SMT. ANNAPURNA GUPTA
(िनधा�रण वष� / Assessment Year : 2020-21) बनाम/ Punit Ashokkumar Income Tax Officer Thakkar Ward-3(1)(2), Vadodara Vs. Bansi-4, Rudra Complex, Near Ashirwad Complex, Waghodiya Road, Vadodara, Gujarat - 390019 �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AFXPT0255N (Appellant) .. (Respondent) अपीलाथ� ओर से /Appellant by : Shri Chirag Raval, A.R. ��यथ� क� ओर से/Respondent by : Smt. Kakoli Uttam Ghosh, Sr. DR Date of Hearing 27/08/2025 Date of Pronouncement 03/09/2025 (आदेश)/ORDER
PER SMT. ANNAPURNA GUPTA, AM:
The present appeal has been filed by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), (hereinafter referred to as “CIT(A)”), National Faceless Appeal Centre (hereinafter referred to as “NFAC”), Delhi dated 03.06.2024 passed under Section 250 of the Income Tax Act, 1961 (hereinafter referred to as the “Act”) and relates to Assessment Year (A.Y.) 2020-21.
Ashokkumar Thakkar vs. ITO] A.Y. 2020-21 - 2 – 2. Grounds raised by the assessee are as under:
“1. The assessment order passed u/s 144 r.w.s 144B of Income Tax Act by the Assessing Officer and confirmed by the first appellate authority u/s 250 is bad in law and deserved to be uncalled for.
The assessing officer as well as first appellate authority has erred in law and on facts in making and confirming respectively the addition of Rs. 45,68,687/-. The same deserves to be deleted.
The appellant craves to reserve his right to add, alter, amend, or delete any ground of appeal during the course of hearing.”
3. The appeal is delayed for filing by 181 days. The assessee stated the reason for the delay to be attributable to his consultant Shri Vimal Thakkar, an Income Tax Practitioner, who was handling his matter at that time and who failed to file the appeal in time. The assessee stated that he became aware of the appeal not having been filed only when notice for demand recovery was received by him from the department and immediately thereafter, he appointed another Authorized Representative to file the appeal, which was accordingly thereafter filed, though with a delay of 181 days. This fact was stated by the assessee on a duly sworn affidavit supported by affidavit of the previous consultant, Shri Vimal Thakkar, whose inaction allegedly had resulted in delay in the filing of the present appeal. In his affidavit, Shri Vimal Thakkar stated that due to personal reasons, he was unable to file the appeal before the ITAT in the prescribed time and subsequently upon request of the assessee, he handed over the case to M/s. Chirag R. Shah & Associates for further proceedings.
Ashokkumar Thakkar vs. ITO] A.Y. 2020-21 - 3 – 4. Having considered the application filed by the assessee, we do not find any reasonable cause adduced by the assessee for the delay. What emanates from the entire explanation of the assessee and his Consultant, is that both of them were extremely careless and lax in their approach. The Consultant has given no reason for the delay in the filing of the appeal except for stating personal reasons, which is just a general statement. In fact, it is no reason at all. The assessee, whose appeal it is and who is ultimately responsible for filing appeal in time, also cannot shrug away his onus of filing the appeal in time, completely attributing the delay to his Consultant, who in any case as we have noted has not given any reasonable cause for the delay. For the aforestated reason we are not inclined to condone the delay in filing of the present appeal. Moreover, we have noted, that the assessee did not appear both before the AO and CIT(A), both of whom have passed order ex parte. Even before us, there was no explanation furnished by the Ld. Counsel for the assessee for not appearing before both the authorities below. The assessee clearly does not appear to be serious about the tax proceedings and has literally taken every authority for granted, not appearing both before the AO and the Ld.CIT(A) and even before us filing appeal with a considerable delay of 181 days for no reason at all.
However, during the course of hearing before us, it was brought to our notice that if the exparte orders of the authorities below is confirmed it would result in grave injustice to the assessee since the addition made was multifold the actual income Ashokkumar Thakkar vs. ITO] A.Y. 2020-21 - 4 – of the assessee and grossly unjustified on facts. It was pointed out that in the impugned case, the AO had made addition on account of capital gain earned on sale of land noting that the assessee had sold the land for a consideration of Rs.50,73,737/-but had declared consideration of Rs.5,05,050/- and long term capital gain thereon, of Rs.1,23,388/-. In the absence of any co-operation from the assessee, the AO treated the consideration for the land sold to be Rs.50,73,737/- and computed capital gain earned thereon by the assessee to be Rs.46,92,075/-. Reducing therefrom the capital gain already returned by the assessee of Rs.1,23,388/-, the AO made addition of the balance amount of Rs.45,68,687/- to the income of the assessee as long term capital gain. The Ld. Counsel for the assessee pointed out that the property so sold by the assessee was owned by 10 co-owners including the assessee’s wife, Purnimaben Ashokkumar Thakkar. Copy of the sale deed was filed before us. The Ld. Counsel for the assessee contended that in the case of Purnimaben Ashokkumar Thakkar also the orders passed by the AO and the CIT(A) were ex parte. However, the ITAT had restored the matter back to the CIT(A) to adjudicate the issue on merits. Copy of the order in dated 03.01.2025 was placed before us. It was further pointed out that in the case of Purnimaben Ashokkumar Thakkar also the AO had treated the entire sale consideration of Rs.50 Lakhs as attributable to the said assessee. He pointed out, therefore, that the AO was repeatedly treating the entire sale consideration received on the sale of the impugned land to two of the co-owners i.e. the assessee and his wife.
Ashokkumar Thakkar vs. ITO] A.Y. 2020-21 - 5 – 6. Considering the facts of the case, therefore, we are of the view that though the assessee appears to be lax in his approach, however, grave injustice would be caused to the assessee if delay in the filing of the present appeal is not condoned, since, in the absence of any fact before the AO, he treated the entire sale consideration received on the same land to be attributable to two of the alleged co-owners of the said land in entirety. In the interest of justice, therefore we consider it fit that the assessee be given an opportunity of hearing before deciding the quantum of capital gain earned on sale of land by him. Accordingly, the matter is restored back to the file of the AO for reconsideration afresh after giving due opportunity of hearing to the assessee. However, noting the non serious attitude of the assessee which has resulted in waste of resources and time of the government authorities including the ITAT, we impose cost of Rs.5000/- on the assessee to be paid to the Prime Ministers Relief Fund.
In the result, appeal filed by the assessee is allowed for statistical purposes.
This Order pronounced on 03/09/2025 Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 03/09/2025 S. K. SINHA True Copy आदेश क� �ितिल�प अ�े�षत/Copy of the Order forwarded to : अपीलाथ� / The Appellant 1. 2. ��यथ� / The Respondent. संबंिधत आयकर आयु� / Concerned CIT 3. 4. आयकर आयु�(अपील) / The CIT(A)- Ashokkumar Thakkar vs. ITO] A.Y. 2020-21 - 6 – �वभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER,