MOHAR SINGH GOUR,BHOPAL vs. ITO NFAC, DELHI

Per Paresh M Joshi, J.M.:

The assessee has filed the present appeal Under Section

253 of the Income Tax Act, 1961 (hereinafter referred to as the

“Act” for sake of brevity) before this Tribunal as and by way of

Second appeal under the Act. The assessee is aggrieved by the

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

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Mohar Singh Gour ITA Nos. 649 & 650/Ind/2024 - A.Y.2013-14

corresponding previous year period is from 01.04.2012 to

31.03.2013.

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

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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.

ITA No.649/Ind/2024 (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

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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. 2. 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

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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. 6. That, the appellant craves leave to add, amend, alter vary and or delete all or any of the above grounds.

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

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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

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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.

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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

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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.

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.

ITA No.650/Ind/2024 (Assessment Year 2013-14)

As the facts, issues and circumstances in ITA No.

650/Ind/2024 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

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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.

Sd/- Sd/-

(BHAGIRATH MAL BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Indore िदनांक / Dated : 05/06/2025 Dev/Sr. PS Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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