Loading judgment…
Facts
The assessee filed an appeal before the Tribunal after a significant delay, citing medical reasons and lack of proper notice. The appeal was against the order of the CIT(A) which dismissed the assessee's first appeal. The core of the dispute revolves around an assessment order passed under Section 147, which the assessee claims was initiated invalidly and without proper opportunity.
Held
The Tribunal condoned the delay in filing the appeal after finding sufficient cause based on medical records and evidence of lack of proper notice. The Tribunal held that the impugned order was passed in violation of principles of natural justice and did not examine the merits of the case adequately.
Key Issues
Whether the assessment proceedings under Section 147 and the subsequent orders were in accordance with law and natural justice, especially concerning proper notice to the assessee and opportunity to be heard.
Sections Cited
147, 148, 253, 250, 139, 246A, 249(4)(b), 144, 144B
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: BHAGIRATH MAL BIYANI & SHRI PARESH M JOSHI
order bearing Number ITBA/NFAC/S/250/2023-24/ 1060262583(1) dated 30.01.2024 of Ld. CIT(A) passed u/s 250 of the Act which is hereinafter referred to as the “Impugned order”. The relevant Assessment Year is 2013-14 and the Page 1 of 10 & 650/Ind/2024 - A.Y.2013-14 corresponding previous year period is from 01.04.2012 to 31.03.2013.
2. FACTUAL MATRIX 2.1 Condonation of Delay 2.2 At the outset and at the threshold the Registry has pointed out that there is a delay of 149 days in preferring this appeal. It is noticed that the “Impugned order” is dated 30.01.2024. The appeal is e-filed on 26.08.2024. The appeal before this Tribunal is required to be filed within a period of 60 days from date of receipt of “impugned order” which date in Form No.36 is shown as 30.01.2024. There is a very brief application on record of this Tribunal wherein condonation of delay of 149 days as pointed out by registry is sought to be condoned by this Tribunal. Prima facie it is stated that e-mail id as per records does not belong to the assessee nor his counsel consequently assessee was unaware of the 1st appellate proceedings hence the delay be condoned as prima facie there is a case to meet. In the paper book filed from pages 38 to 73 which are photo copy of medical records evidences that the assessee is sick person and is not medically fit and active. Prayer for condonation of delay was thus made during the Page 2 of 10 & 650/Ind/2024 - A.Y.2013-14 hearing held on 02.06.2025 and it was stated at bar that an affidavit is placed on (sent on speed post Saturday i.e. 30.05.2025) record substantiating the “sufficient cause” in the condonation of delay application. Per contra Ld. DR has left it to this Tribunal’s wisdom to take appropriate call with regard to delay as per law. We after perusing the records including affidavit and after hearing rival submissions are of the considered opinion that the assessee has shown both prima facie case as well as medical grounds as “sufficient cause” in condonation of delay of 149 days. Accordingly this tribunal condones the delay.
Appeal is admitted and taken up for hearing.
2.3 Since in the both the appeals common question arises with consent of the parties they are being heard together and is being disposed off by this common order.
(Assessment Year 2013-14)
2.4 That as and by way of an assessment order bearing No. ITBA/AST/S/147/2023-24/1053006826(1) dated 19.05.2023 the income of the assessee was computed as Rs. Two crores u/s 147 r.w.s. 144/144B of the Act. There is no return of income
Page 3 of 10 & 650/Ind/2024 - A.Y.2013-14 filed u/s 139 nor u/s 148. The said assessment order is hereinafter referred to as the “impugned assessment order”.
2.4 That the assessee being aggrieved by the “impugned assessment order” prefers first appeal u/s 246A of the Act before Ld. CIT(A) who by the “impugned order” has dismissed the first appeal of the assessee on the ground specified therein.
The core reason being that by virtue of Section 249(4)(b) the assessee was required to pay an amount equal to the amount of advance tax as the same is not paid and hence appeal is not admitted and is dismissed for statistical purpose.
2.5 That the assessee being aggrieved by the “impugned order” has preferred this instant second appeal before this Tribunal and has raised following grounds of appeal in Form 36 against the “impugned order” which are as under:-
“1. That in the facts and circumstances of the case the very initiation proceedings under section 147 of the Income Tax Act, 1961 and issuance of notice under section 148 in bad in law and invalid.
That in the facts and circumstances of the case the Learned Assessing Officer merely on the basis of opinion without any corroborative evidence has added income of Rs. 2,00,00,000/- in the hands of assessee as short term capital gains and the Learned CIT Appeals has dismissed the appeal file against the Page 4 of 10 & 650/Ind/2024 - A.Y.2013-14 said assessment order which is bad in law and should be deleted which is bad in law and should be deleted.
3. That in the facts and circumstances of the case the Learned Assessing Officer without proper enquiries and investigation considered that the said property was capital asset and attracted capital gains which is erroneous and invalid in nature and the Learned CIT Appeals has dismissed the appeal file against the said assessment order which is erroneous and unjust.
4. That in the facts and circumstances of the case the order under section 144 and under section 250 is passed in haste without providing sufficient opportunity of being heard to the assessee.
5. That in the facts and circumstances of the case the appellant was not required to pay any taxes since he had only agricultural income in the relevant assessment year thus dismissal of appeal on account of non payment of advance tax is bad in law and erroneous.
That, the appellant craves leave to add, amend, alter vary and or delete all or any of the above grounds.
Record of Hearing 3.1 The Ld. AR for and on behalf of the assessee appeared before us and the Ld. DR for and on behalf of the Revenue too appeared before us. Both the parties were given equal opportunities to present their respective cases and were treated equally. The Ld. AR at the outset and at the threshold contended that the “impugned order” is bad in law and illegal. It is also passed in the violation of the principles of natural justice and is therefore null and void. The Ld. AR then brought to our notice
Page 5 of 10 & 650/Ind/2024 - A.Y.2013-14 that the assessee is an agriculturist by profession. He has agriculture income only consequently he is not liable in law to pay any taxes on income and therefore the question of paying any advance tax on income is ruled out completely. The core ground on which the 1st appeal is dismissed is non payment of advance tax. The Ld. AR in support of his contention has placed reliance on paper book from pages 1 to 114. The Ld. AR also informed us that the assessee has made an application to Registrar, Land Records for supplying true copy of registered deeds for “subject land in issue” to demonstrate that fact that the subject lands are agriculture lands and upon its sale no capital gain liability arises on the assessee. It was also contended that “subject lands” basis which capital gain liability is calculated by Ld.AO in the “impugned assessment order” are in fact belongs to his father and has ancestral lineage. Per contra Ld. DR for and on behalf of the Revenue contended that “impugned order” and so also “impugned assessment order” somehow or the other has not taken into consideration the entire gamut of the facts and circumstances of the case as is presented to this Tribunal today during the course of the hearing. The documents which are Page 6 of 10 & 650/Ind/2024 - A.Y.2013-14 placed now in the paper book were not so placed in the earlier proceedings and Ld. AR still desires to place some additional material, documents and evidence in support of her case as is placed now. Hence it would be in fitness of things that matter be relegated back to the file of Ld. Assessing Officer for fresh adjudication and adjudgement so that income of the assessee is determined judiciously in accordance with law after appropriate opportunities are provided by Ld. Assessing Officer including a hearing. The Ld. AR in the rejoinder argument emphatically contended that “impugned order” is passed in violation of the principles of natural justice as no notice came to the assessee.
Further e-mail address in Form No.35 belongs to someone else probably the earlier counsel who was engaged by the assessee.
The “impugned order” however was received by the assessee by speed post. The Ld. DR however has not refuted this factual assertion made by the Ld. AR during the course of hearing save and except that it would be just fair and convenient that matter be relooked afresh by Ld. Assessing Officer on denovo basis.
Observations,findings & conclusions.
Page 7 of 10 & 650/Ind/2024 - A.Y.2013-14 4.1 We now have to adjudge and adjudicate the present appeal filed by the revenue on basis of the records of the case and contentions canvassed before us during the course of hearing. In brief we have to decide the legality, validity and the proprietery of the “impugned order”.
4.2 We have carefully perused the records of the case as presented to this tribunal by both Ld. AR and Ld. DR to determine the legality, validity of the “Impugned Order” basis law and by following due process of law.
4.3 We basis records of the case and so also after hearing and upon examining the contentions of both Ld. AR and Ld. DR are of the considered opinion that the “impugned order” has not just examined the merits of the case as is contemplated by law u/s 250(6) of the Act. Further the assessee was in dark with regard to first appellate proceedings and no notice(s) came to him as e- mail id on Form No.35 belonged to earlier counsel or someone else who he does not even know.
4.4 In the premises drawn up by us, under these peculiar facts and the circumstances of the case we set aside the “impugned order” and remand the case back to the file of Ld. Assessing
Page 8 of 10 & 650/Ind/2024 - A.Y.2013-14 Officer to do fresh assessment on denovo basis and compute correct income of the assessee according to law. The assessee is directed to give his correct e-mail address and so also of his counsel so that fresh notice(s) could be issued for hearing to them. The assessee is also directed to update his profile. The assessee is directed to cooperate with the department of Income Tax and to provide to them all necessary and required documents, papers and evidences in such a manner that his total income exigible to tax is calculated and assessed according to law.
Order 5.1 In the premises impugned order is set aside as and by way of remand on denovo basis back to the file of Ld. AO.
5.2 Appeal of the assessee is allowed for statistical purpose. (Assessment Year 2013-14) As the facts, issues and circumstances in are similar/pari materia to that of ITA No.649/Ind/2024 24, therefore, our findings given in ITA No.649/Ind/2024 would apply mutatis-mutandis to ITA
Page 9 of 10 & 650/Ind/2024 - A.Y.2013-14 No.650/Ind/2024 also. Accordingly,ITA No.650/Ind/2024 is too also allowed for statistical purposes and “impugned order” therein is too set aside as and by way of remand on denovo basis back to the file of Ld. AO.
Order pronounced in open court on 05.06.2025.