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Facts
The assessee, legal heir of Late Shri Narayan Jat, is in appeal against the order of CIT(A) confirming an addition of Rs. 1,20,00,000/- on account of Long Term Capital Gain. The assessee also sought condonation of delay of 18 days in filing the appeal before the ITAT, attributing it to the death of her husband and her lack of awareness of the case details. The AO had made the addition and the CIT(A) confirmed it ex-parte due to non-production of evidence by the assessee.
Held
The Tribunal condoned the delay of 18 days in filing the appeal, considering the death of the assessee's husband and her lack of awareness. However, due to the assessee having been proceeded ex-parte before the AO and CIT(A) without putting forth her defence, the matter was restored to the file of the AO for fresh adjudication after providing one more opportunity of hearing. The appeal was allowed for statistical purposes.
Key Issues
Whether the delay in filing the appeal can be condoned and whether the matter should be restored to the AO for fresh adjudication when the assessee was proceeded ex-parte due to lack of representation and evidence.
Sections Cited
54, 147, 144, 54B, 54F, 2(14)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”B” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 1119/JPR/2024
fu/kZkj.k o"kZ@Assessment Years : 2010-11 Mrs. Syaani cuke The ITO, Legal heir Late Shri Narayan Jat, Vs. Ward-7(2), 28, Mahpura Mod, Hasampura Bhankrota, Jaipur. Sanganer, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BRTPJ0958D vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri R.S. Poonia, C.A. jktLo dh vksj ls@ Revenue by : Mrs. Swapnil Parihar, JCIT-DR a lquokbZ dh rkjh[k@ Date of Hearing : 20/02/2025 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 18 /03/2025 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal filed by the assessee is directed against the order of the ld. CIT(A) dated 13-06-2024, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2010-11 raising therein following grounds of appeal.
1. That the order passed by the Ld. Commissioner of Income Tax (NFAC), Delhi is bad in law, wrong on the facts and against the principles of natural justice.
Syaani Legal Heir Late Narayan Jat vs. ITO 2. That the Ld. CIT (Appeals) has erred on facts and in law in confirming the addition of Rs. 1,20,00,000/- on account of Long Term Capital Gain u/s. 54 of the I.T. Act, 1961 to the income of the appellant on this count is wrong, unwarranted and bad in law. Kindly delete the addition.’’ 2.1 At the outset of hearing, the Bench observed that there is delay of 18 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed an application for condonation of delay with following prayers.
“1. That I Smt. Syaani being a legal heir filed this present appeal on 30.08.2024 against the ex-parte order passed by Ld. CIT (Appeals), NFAC, order dated 13.06.2024, with a delay of 18 days.
That my Husband Late Shri Narayan Jat filed an appeal before CIT (Appeal) on 11.06.2018 against the assessment order passed by A.O. on 18.12.2017.
That the issue of assessment was capital gain on account of sale of agricultural land.
That my Husband Shri Narayan Jat lodged an FIR on 18.12.2014 against the 'so called' purchasers for execution of the said 'forged' sale deed dated 18.02.2010.
That meanwhile my Husband Shri Narayan Jat expired on 05.02.2019. Copy of Death Certificate dated 05.02.2019 is enclosed.
That I had 4 sons named Shri Sita Ram Choudhary, Shri Laxmi Narayan Jat, Shri Rajendra Choudhary and Shri Mukesh Choudhary & among these 4, Shri Rajendra Choudhary was expired in year 2007 and remaining 3 sons are also 5th Class passed and not competent to handle all these types of complex litigation.
Syaani Legal Heir Late Narayan Jat vs. ITO 7. Therefore, I handed over all these litigation of civil as well as criminal cases to my 'Navasa' Shri Kamal Choudhary, who is doctor to look after & follow up.
That during this process, my 'Navasa' came to know that there is one Income Tax appeal which was pending before CIT (Appeals) for A.Y. 2010- 11, decided ex-parte on 13.06.2024.
That thereafter, my 'Navasa' engaged a counsel CA Raghuveer Singh Poonia, Jaipur, who advised us to file appeal before Hon'ble ITAT, Jaipur with immediate effect with the application of delay condone. Accordingly, I have prepared and filed the appeal before Hon'ble ITAT, Jaipur with a delay of 18 days.
That the delay of 18 days in filing of appeal before CIT(Appeals) was due to death of my Husband Narayan Jat and I was unware and same can be treated as reasonable cause and bonafide.”
To this effect, the assessee has filed an affidavit as to the condonation of delay in filing the appeal.
2.2. During the course of hearing, the ld. DR objected to assessee’s application for condonation of delay and prayed that Court may decide the issue as deemed fit and proper in the interest of justice.
2.3 We have heard the contention of both the parties and perused the materials available on record. The prayer as mentioned above by the assessee for condonation of delay of 18 days has merit for the reason that that her husband Shri Narayan Jat passed away and she was not aware of the facts of the case and also the order passed by the ld.CIT(A) which made delay in filing the appeal before ITAT. In this view of the matter, Syaani Legal Heir Late Narayan Jat vs. ITO the Bench feels that the assessee, i.e. legal heir of Shri Naryan Jat, is prevented by sufficient in cause in late filing the appeal. Hence, the delay is condoned.
3.1 Apropos ground of appeal, it is noticed that the ld CIT(A) has dismissed the appeal of the assessee by observing at para 6 & 7 of his order as under:-
“6. Decision In all the grounds of appeal
, the appellant has challenged the addition made by the Assessing Officer. However, he did not produce any submission or supporting documents in support of his claim, during the entire appellate proceedings. He also raised the ground that the Assessing officer did not consider the cost of acquisition. However, as is clear from the assessment order, evidence of cost of acquisition was never produced or submitted before the Assessing Officer, nor the same was filed during appellate proceedings. In col.-11 of Form no.-35, he has mentioned that the documents related to cost of acquisition of the said land would be provided during the course of appellate proceedings, but the same were never produced, despite several opportunities. 6.1 As noted from the facts of the case and material available on record, it is seen that the Assessing Officer made the above additions, based on materials available on record, after according proper and adequate opportunity to the appellant and after marshalling the facts. The appellant did not produce any evidence in support of his claim or made any response against the various notices issued from time to time during the entire appellate proceedings. There is no material before me to deviate from the order of the Assessing Officer. Hence, it is held that the assessment order passed by the Assessing Officer u/s 147r.w.s144 of the Act, resulting into the assessed income amounting to Rs. 1,20,00,000/-/-, based on his findings and proper adjudication, is quite in order, and the same is hereby confirmed. Accordingly, Grounds of appeal of the appellant are dismissed.
7. In the result, the appeal is dismissed.”
Syaani Legal Heir Late Narayan Jat vs. ITO It is also noteworthy to mention that the ld. CIT(A) passed an ex-parte order in spite of providing various opportunities on different dates as under:-
S.No. Date of notice Date of compliance Remarks 1. 06-02-2021 25-02-2021 No response 2. 16-01-2024 23-01-2024 No response 3. 30-01-2024 06-02-2024 No response 4. 14-02-2024 21-02-2024 No response Thus the ld. CIT(A) confirmed the action of the AO holding that the assessee did not produce any evidence in support of his claim.
3.2 During the course of hearing, the ld. AR on behalf of the legal heir of the assessee submitted that her husband passed away on 5-02-2019 and she was not aware of the facts of the case and thus she was deprived of getting adequate opportunity of being heard and she may be given one more chance to contest the case before the AO.
3.3 On the other hand, the ld. DR supported the orders of the lower authorities.
Syaani Legal Heir Late Narayan Jat vs. ITO 3.4 We have head both the parties and perused the materials available on record. It is noticed that the AO passed an ex-parte order in the case of the then assessee Shri Narayan holding as under:-
‘’5.0 Deductions:- As the assessee could not provide and claim any cost of indexation of the property. In absence of the claim of the assessee, I have no alternative to take it as NIL. Further, the assessee has also failed to claim deduction u/s 54B and 54F, thus no deduction can beallowed to the assessee.’’ The relevant para of the assessment order dated 18-12-2017 is reproduced as under:-
‘’3.0 In this case information received from the joint Director of Income tax (Investigation), Jaipur stating that the assessee has sold 1/2th share of immovable property situated at Khasara no. 201 rakba 0.24 hector and Khasara no. 205, rakha 1.75 hector, total rakba 1.99 hector at Village Hasampura, Patwar halka- Bhankrota Kalan, Tehsil- sanganer, Jaipur sold capital assets within the meaning of section 2[14] of the Income-tax Act, 1961 at Village- Siroll, Jaipur for Rs. 1,20,00,000/-, which was valued at Rs. 1,20,00,000/- u/s 54 of the Act. The sold land's description is given as under:- 4.0 Land sold: The sold land’s description is given as under:-
S. No. Land situated at Bearing Amount as per Amount as per Date of Khasara registry register office registry no. u/s 54 1. Village-Hsampura, 205 Rs. Rs. 18.02.2010 Bhankrota Kalan, Jaipur 1,20,00,000/- 1,20,00,000/- Syaani Legal Heir Late Narayan Jat vs. ITO 5.0 Deductions:- As the assessee could not provide and claim any cost of indexation of the property. In absence of the claim of the assessee, I have no alternative to take it as NIL. Further, the assessee has also failed to claim deduction u/s 54B & 54 F, thus no deduction can be allowed to the assessee. 6.0 During the course of assessment proceedings the son of the assessee Sh. Laxmi Narayan Jat attended on 11/12/2017 and stated that his father neither sold property nor received any sale consideration. On perusal of records & information available on records the assessee has sold property le. khasara no. 201 rakba 0.24 hector and khasara no. 205, rakba 1.75 hector, total rakba 1.99 hector at Village- Hasampura, Patwar halka- Bhankrota Kalan, Tehsil-Sanganer, Jaipur, which was capital assets within the meaning of section 2(14) of the Income-tax Act, 1961. Total sale consideration of the property was of Rs. 1,20,00,000/-, which was valued at Rs. 1,20,00,000/- u/s 54. During the course of assessment proceedings son of the assessee replied that this property is disputed and legal proceeding is pending before the police and civil courts. Further, he has furnished the copy of relevant papers of legal proceedings of sold property. ‘’ Thus the AO assessed the income of Rs.1.20,00,000/- u/s 144/147 of the Act as undisclosed long term capital gain in the hands of the assessee. The ld. CIT(A) has dismissed the appeal of the assessee holding as under:-
‘’6.1 …. There is no material before me to deviate from the order of the Assessing Officer. Hence, it is held that the assessment order passed by the Assessing Officer u/s 147r.w.s144 of the Act, resulting into the assessed income amounting to Rs. 1,20,00,000/-/-, based on his findings and proper adjudication, is quite in order, and the same is hereby confirmed. Accordingly, Grounds of appeal of the appellant are dismissed.
Syaani Legal Heir Late Narayan Jat vs. ITO 3.5 It is an admitted fact that the assessee is ex-parte before the AO and also before the ld. CIT(A). Therefore, she could not put forth his defence. It was the bounded duty of the assessee to appear before the statutory authorities as and when called for. It is noticed that various opportunities were provided to the assessee for settling the issue but the assessee remained lethargic and unserious in pursuing his case. However, we are of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing opportunity of being heard to the assessee. Hence, the matter is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings. Thus the appeal of the assessee is allowed for statistical purposes. 3.6 Before parting, we may make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by AO independently in accordance with law.
Order pronounced in the open Court on 18/03/2025.