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Facts
The assessee filed an appeal against the order of CIT(A) which partly allowed the appeal and sustained the assessment order concerning deduction under section 54. The appeal was barred by limitation by 162 days due to the assessee coming to know of the order late.
Held
The Tribunal condoned the delay in filing the appeal, holding that the assessee should not suffer due to the lapse of the previous Chartered Accountant. On merits, the Tribunal decided to remit the issue of deduction to the Assessing Officer for decision.
Key Issues
Whether the delay in filing the appeal should be condoned, and whether the assessee can claim deduction under Section 54 for the first time before the appellate authorities.
Sections Cited
54, 148, 139(5), 80-1B, 254
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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: SHRI RATHOD KAMLESH JAYANTBHAI, AM & SHRI NARINDER KUMAR, JM vk;dj vihy la-@ITA No. 1021/JPR/2025
vkns'k@ORDER Per: Narinder Kumar, Judicial Member Assessee-appellant-applicant has challenged order dated 11.11.2024, passed by Learned CIT(A), whereby the appeal filed by him, relating to the assessment year 2011-12, has been partly allowed, and the assessment order dated 16.11.2018, has been sustained as regards deduction claimed u/s 54 of the Income Tax Act, (hereinafter referred to “the Act”).
Shri Prabhati Lal, jaipur 2. It may be mentioned here that as reported by the Registry, the appeal is barred by limitation by 162 days. Accordingly, the assessee has come up with an application seeking condonation of delay. The application is accompanied by an affidavit. On the point of condonation of delay, Ld. AR for the applicant has submitted that the applicant came to know of the impugned order dated 11.11.2024, only in the month of June, 2025, when Shri Veerendra Bhardwaj, C.A. browsed the e-filing portal to know about fait of the appeal. Accordingly, Ld. AR has prayed for condonation of delay.
In the supporting affidavit, the assessee-applicant has testified as follows:- “4. For filing the appeal before Ld. CIT(A), I through CA Veerendra Bhardwaj appointed CA Anil Nuhal of Kalani & Co., Jaipur. CA Anil Nuhal filed the appeal on 11.12.2018. In Form No.35, at Column No. 17- Address to which notices may be sent to the appellant, the mobile no. and e-mail address was given of CA Anil Nuhal which was 9829888809 and anuhal@kalanico.com.
Ld. CIT(A) sent the notice of hearing at e-mail id of CA Veerendra Bhardwaj which is rrkk83@gmail.com. CA Veerendra Bhardwaj forwarded the notices to CA Anil Nuhal who against the last notice dt. 23.09.2024 filed the reply on 08.10.2024. Thereafter Ld. CIT(A) passed the order on 11.11.2024. This order did not come to the notice of my counsel CA Veerendra Bhardwaj.
When CA Veerendra Bhardwaj browsed my e-filing portal in the month of June, 2025 to know about the fate of the appeal, then it came to his notice that the appellate order has been passed on 11.11.2024.
For the above reason there is delay in filing the appeal from the date of passing of the appellate order but there is no delay from the date when the order came to my knowledge. However, as advised, I am now filing the appeal before Hon'ble ITAT along with the request to condone the delay in filing the appeal.”
Shri Prabhati Lal, jaipur 4. Ld. DR for the department has opposed the prayer for condonation of delay, while submitting that it has become a trend, not to appear before the authorities below, and come up with prayer for condonation of delay while shifting the burden to the Chartered Accountant engaged by the party, and that the application deserved to be dismissed.
5. As noticed above, the appeal filed by the assessee was partly allowed by Learned CIT(A). In the given fact and circumstances, had the assessee been aware of passing of the impugned order, he would have immediately appeared before the Assessing Authority for giving effect to the deletion of Rs. 4,00,000/- and also for the purpose of valuation of the property by DVO. It appears that the Chartered Accountant previously engaged by the assessee did not apprise the assessee of the impugned order. For this, the assessee cannot be made to suffer. Accordingly, in the peculiar facts and circumstances, delay in filing of the appeal is condoned. On merits 6. Deduction came to be disallowed on the ground that the assessee did not file his original return of income. By way of this appeal, the only ground raised
by Ld. AR for the appellant is that Learned CIT(A) having accepted that in the assessment Shri Prabhati Lal, jaipur order genuineness of investment by the assessee was not doubted, deduction as claimed should not have been disallowed simply on the ground that the assessee did not file his original return of income claiming the said deduction. Ld. AR for the appellant has relied on written submission, wherein reliance has also been placed on certain decisions, and urged that while setting aside the impugned order, the Assessing Officer be directed to consider the claim of deduction u/s 54/54F in respect of investment made by the assessee on construction of the house property:-
5. It is submitted that deduction u/s 54 is not allowed by the CIT(A) for the reason that the claim cannot be entertained at appeal proceedings as assessee has not claimed the same in the return filed u/s 148 of Act. It may be noted that Hon'ble Supreme Court in case of Goetze India Ltd. Vs. CIT 284 ITR 323 has held that there is no power in the hands of AO to entertain claim made otherwise than by way of filing revised return but it is clarified that this decision did not impinge upon the power of ITAT u/s 254 of the Income Tax Act, 1961 to entertain the claim made for the first time before it. Reliance is placed on the following cases wherein after referring to the decisions of the Supreme Court in case of Goetze India it is held that claim of assessee can be accepted by appellate authority even if claim is not made in the return or revised return. CIT Vs. Sam Global Securities Ltd. (2014) 360 ITR 682 (Del.) (HC) Claim not made in the return could not be rejected by CIT(A) on the ground that the assessee had not filed a revised return within the time allowed under sec. 139(5) but had only filed a revised computation. Tribunal also has power to allow a claim which is not made in the return. CIT Vs. Ramco International 332 ITR 306 (P&H) Assessee having duly furnished the documents and submitted Form No. 10CCB during assessment proceedings, claim for deduction under s. 80-1B by way of an application was admissible-There was no requirement for filing any revised CIT Vs. Pruthvi Brokers & Shareholders (P) Ltd. (2012) 349 ITR 336 (Bom.) (HC) It was submitted by counsel for the appellant that the Supreme Court had taken a different view in Goetze (India) Limited v. CIT. However this Court is unable to agree. The decision was rendered by a Bench of two learned Judges and expressly referred to the judgment of the Bench of three learned Judges in National Thermal Power Company Limited vs. Commissioner of Income-tax. The question before the Court was whether the appellant assessee could make a claim for deduction, other than by filing a revised return. After the return was filed, the appellant sought to claim a deduction by way of a letter before the Assessing Officer. The claim, therefore, was not before the appellate authorities. The deduction was disallowed by the Assessing Officer on the ground that there was no provision under the Act to make an amendment in the return of income by modifying an application at the assessment stage without revising the return. The Commissioner of Income Tax (Appeals) allowed the assessee's appeal. The Tribunal, however, allowed the department's appeal. In the Supreme Court, the assessee relied upon the judgment in National Thermal Power Company Limited contending that it was open to the assessee to raise the points of law even before the Tribunal. Thus, it is clear that the Supreme Court did not hold anything contrary to what was held in the previous judgments to the effect that even if a claim is not made before the assessing officer, it can be made before the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim has not been negated by the Supreme Court in this judgment. In fact, the Supreme Court made it clear that the issue in the case was limited to the power of the assessing authority and that the judgment does not impinge on the power of the Tribunal under section 254.”
Result 7. In view of the portions of the decisions extracted in the written submission and applying the same to the facts of this case, even though the assessee should have claimed deduction in the return, and there was no modification in this regard, having regard to the fact that tax is to be Shri Prabhati Lal, jaipur charged in accordance with law, we deem it a fit case to remit, even this issue of deductions claimed before us, to the Assessing Officer for decision in accordance with law. The appeal is disposed of, for statistical purposes, while so remitting the matter to the Assessing Officer. File be consigned to the record room after the needful is done by the office. Order pronounced in the open court on 22/08/2025.