JAGDISH SHARMA,JAIPUR vs. ITO, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR Jh HkkxpUn] ys[kk lnL; ds le{k BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER vk;dj vihy la-@ITA No. 914/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2006-07 cuke Shri Jagdish Sharma The ITO Vs. S/o Shri Narayan Sharma Ward- 7(2) Village & Post: Sarangpura Jaipur Tehsil: Sanganer, Ajmer Road, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ARKPS 0610 B vihykFkhZ@Appellant izR;FkhZ@Respondent

vk;dj vihy la-@ITA No. 915/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2006-07 cuke Shri Chouthmal Sharma The ITO Vs. S/o Narayan Sharma Ward- 7(2) Village & Post: Sarangpura Jaipur Tehsil: Sanganer, Ajmer Road, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BOVPS 2251 F vihykFkhZ@Appellant izR;FkhZ@Respondent

vk;dj vihy la-@ITA No. 916/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2006-07 cuke Shri Hanuman Sahai Sharma The ITO Vs. S/o Shri Narayan Sharma Ward- 7(2) Village & Post: Sarangpura Jaipur Tehsil: Sanganer, Ajmer Road, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: FWEPS 5511 M vihykFkhZ@Appellant izR;FkhZ@Respondent

vk;dj vihy la-@ITA No. 917/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2006-07 cuke Shri Ghasi Ram Sharma The ITO Vs. S/o Shri Narayan Sharma Ward- 7(2) Village & Post: Sarangpura Jaipur Tehsil: Sanganer, Ajmer Road, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AKAPR 2783 D vihykFkhZ@Appellant izR;FkhZ@Respondent

vk;dj vihy la-@ITA No. 918/JP/2016 fu/kZkj.k o"kZ@Assessment Year : 2006-07 cuke Shri Prahlad Sahay Sharma The ITO Vs. S/o Shri Ladu Ram Sharma Ward- 7(2) Village & Post: Sarangpura Jaipur Tehsil: Sanganer, Ajmer Road, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BFIPS 2370 M vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@Assessee by: Shri R.N. Sharma, Advocate jktLo dh vksj ls@ Revenue by :Smt. Poonam Rai, DCIT- DR lquokbZ dh rkjh[k@ Date of Hearing : 27/09/2017 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 10 /10/2017 vkns'k@ ORDER PER BHAGCHAND, AM The above mentioned appeals have been filed by different assessee’s against separate order ld. CIT(A)-III, Jaipur dated 09-08-2016 for the assessment year 2006-07. The grounds of appeal raised by the above mentioned assessee's are as under:-

ITA No.914/JP/2016 – Shri Jagdish Sharma

‘’1.1. The impugned order u/s 147 dated 21-01-2014 is bad in law and on facts of the case, for want of jurisdiction, barred by limitation and various other reasons and hence the same may kindly be quashed.

1.2 The action taken u/s 147 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.

1.3 The AO has erred in passing the assessment order without providing adequate and reasonable opportunity of being heard and without confronting the material gathered in the gross breach of law. Hence, the assessment so made and consequential additions so made may kindly be quashed and deleted.

ITA No.915/JP/2016 – Shri Chouthmal Sharma

‘’1.1. The impugned order u/s 147 dated 21-01-2014 is bad in law and on facts of the case, for want of jurisdiction, barred by limitation and various other reasons and hence the same may kindly be quashed.

1.2 The action taken u/s 147 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.

1.3 The AO has erred in passing the assessment order without providing adequate and reasonable opportunity of being heard and without confronting the material gathered in the gross breach of law.

Hence, the assessment so made and consequential additions so made may kindly be quashed and deleted.

6. The AO erred in law as well as on the facts of the case in charging of interest u/s 234B, 234C & 234D as consequential in nature. The appellant totally denies it liability of charging of any such interest. Hence, the interest so charged, being contrary to the provisions of law and fats, may kindly be deleted in fully.

ITA No.916/JP/2016 – Shri Hanuman Sahai Sharma

‘’1.1. The impugned order u/s 147 dated 21-01-2014 is bad in law and on facts of the case, for want of jurisdiction, barred by limitation and various other reasons and hence the same may kindly be quashed.

1.2 The action taken u/s 147 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.

1.3 The AO has erred in passing the assessment order without providing adequate and reasonable opportunity of being heard and without confronting the material gathered in the gross breach of law. Hence, the assessment so made and consequential additions so made may kindly be quashed and deleted.

3. Rs. 21,00,634/-:- The AO has grossly erred in law as well as on the facts of the case in making the addition of Rs. 21,00,634/- on account of Long Term Capital Gain on the entire sale consideration of Agriculture Land which was not a capital asset as per I.T. Act, thus the AO erred in taxing the sale of agriculture land under Long Term Capital Gain. Hence, the addition so made by the AO without considering the true facts and legal position is totally contrary to the provisions of law and facts. Hence, the same may kindly be deleted in full.

ITA No.917/JP/2016 – Shri Ghasi Ram Sharma

‘’1.1. The impugned order u/s 147 dated 21-01-2014 is bad in law and on facts of the case, for want of jurisdiction, barred by limitation and various other reasons and hence the same may kindly be quashed.

1.2 The action taken u/s 147 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.

1.3 The AO has erred in passing the assessment order without providing adequate and reasonable opportunity of being heard and without confronting the material gathered in the gross breach of law. Hence, the assessment so made and consequential additions so made may kindly be quashed and deleted.

ITA No.918/JP/2016 – Shri Prahlad Sahay Sharma

‘’1.1. The impugned order u/s 147 dated 21-01-2014 is bad in law and on facts of the case, for want of jurisdiction, barred by limitation and various other reasons and hence the same may kindly be quashed.

1.2 The action taken u/s 147 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.

1.3 The AO has erred in passing the assessment order without providing adequate and reasonable opportunity of being heard and without confronting the material gathered in the gross breach of law.

Hence, the assessment so made and consequential additions so made may kindly be quashed and deleted.

6. The AO erred in law as well as on the facts of the case in charging of interest u/s 234B, 234C & 234D as consequential in nature. The appellant totally denies it liability of charging of any such interest. Hence, the interest so charged, being contrary to the provisions of law and fats, may kindly be deleted in fully.

2.1 The facts as emerges from the orders of the ld. CIT(A) in respect of the

above appeals are that these appeals have been summarily rejected by the ld.

CIT(A) on the ground of late filing of appeals of approx. 180 days by the

respective assessee’s. The relevant observation of the ld. CIT(A) as mentioned in

the case of Shri Prahlad Sahay Sharma (ITA No.918/JP/2016) is as under:-

‘’4.3 ……The main reasons stated for delay in filing of appeal are that the assessment order was not served on the assessee. On careful consideration of all relevant facts it may be noted that the facts stated by the appellant for delay in filing of appeal are factually not correct. The appellant is claiming that the assessment order dated 21.01.2014 which has been dispatched on 28.01.2014 against which the appeal has been filed was never received by the assessee. But such contention is not correct in as much as the assessment order 21.01.2014 has been sent through registered post on the address as mentioned in form 35 thus it is not the case that the address was changed. It may be noted that the assessment order is passed on 21.01.2014, dispatched on 28.01.2014 through registered post and the appeal has been filed on 28.08.2014, i.e by delay of approximately 180 days and prima facie there was no reasonable cause for such delay. It may also be stated that the delay in filing of appeal can be condoned only in the circumstances when the appellant has acted with reasonable diligence. For such finding reliance is placed on the following case laws: (i) Brij Inder Singh Vs. Kanshi Ram AIR 1917-PC-156 (ii) Baroda Rayon Corporation Ltd. (Guj.) 87 STC 266 (iii) Baldeo Lal Roy Vs. State of Bihar (1960) 11 STC 104 (Pat.) (iv) M. Loganathan Vs. CIT (Mad.) 302 ITR 139 The reasons for late filing of the appeal as cited above cannot said to be bona-fide and therefore, this case is not found fit for condonation of delay. As the appeal has not been presented as per provision of sec. 249(2) of IT Act and the delay in filing of appeal is not condoned, therefore, the appeal is rejected being ab-initio void. The grounds of appeal are accordingly not required to be adjudicated. ‘’

2.2 During the course of hearing the ld.AR of the assessee prayed that the AO

had not provided adequate opportunity of being heard to the respective assessee's.

The ld.AR of the assessee further submitted that the ld. CIT(A) had also not

granted the condonation of delay in late filing the above appeals. The respective

assessee had genuine reasons as the assessment order was not served on the

assessee. The delay in filing the appeal was on account of not getting the

assessment order for which the assessee applied the certified copies before the

Department. For the sake of convenience and brevity of the case, the relevant

submission of the assessee as to the issue of not allowing condonation of delay by

the ld. CIT(A) is as under:-

‘’At the outset, it may be mentioned that the appellant is a layman, and an illiterate person not conversant with the tax laws. The assessee had not received the assessment order in time. He cam to know about the order when the demand notice for penalty was served on him and he contacted a CA to seek his advice. It is at this juncture, the AO was requested to supply a certified copy of the assessment order passed by him. Immediately on receipt of the assessment order, the appeal was filed. The ld. CIT(A) ignoring the true facts and circumstances and also the evidence placed before him in this regard, rejected the appeal as being time barred. The request made to the AO for obtaining certified copy of assessment order is placed at page 1 of the paper book. In the principles of natural justice, the ld. CIT(A) ought to have admitted the appeal condoning the delay and decided it on merits. In view of the above facts, the appellant craves that the order of the ld. CIT(A) may be set aside and the appeal be decided on merits.’’

2.3 On the other hand, the ld. DR supported the orders of the ld. CIT(A) in

respective appeals.

2.4 I have heard the rival contentions and perused the materials available on

record. It is noted that the AO had passed the separate assessment order on

21-01-2014 which were dispatched on 28-01-2014. However, these assessee's

claimed that these orders were not received by them. Thus the orders were made

and dispatched in time but these assessee's claim that these orders were not

received by them. Subsequently, the respective assessee’s applied for certified

copies of the assessment order. It is further noted that the respective assessee's filed

the appeal before the ld. CIT(A) who summarily rejected the appeal of the

respective assessee's vide her separate order dated 09-08-2016 being time barred

and not allowing the condonation of delay. In view of the facts, circumstances of

the case and arguments of the ld.AR of the assessee, it will be in interest of equity

and justice to condone the delay in filing the appeal by the respective assessee's. It

is also pertinent to mention that the efforts should be made to adjudicate upon the

case of the assessee on merits instead of dismissing the same on technical

reasons. Considering the above scenario in the case of the above assessee's, it will

be in the interest of equity and justice to restore the above appeals to the file of the

ld. CIT(A) to decide them afresh on merits by providing adequate opportunity of

being heard to the respective assessee’s. The respective assessee’s are also

directed to produce all the relevant documents/ papers before the ld. CIT(A) for adjudication concerning the issue raised in the grounds of appeal before this Bench. Thus the above appeals of the respective assessee's are allowed for Statistical purposes. 3.0 In the result, the appeals of the assessee's are allowed for statistical purposes. Order pronounced in the open court on 10 /10/2017.

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