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Facts
The assessee, a housewife, sold two immovable properties, and the capital gain was not offered for taxation. The Assessing Officer reopened the case and determined a long-term capital gain of Rs. 37,87,667. The assessee failed to provide documentation regarding the cost of acquisition and construction.
Held
The Tribunal condoned the delay of 103 days in filing the appeal. Due to the peculiar facts and circumstances, and to ensure proper adjudication, the case was remanded to the Commissioner for a fresh decision, with a direction to provide the assessee with a reasonable opportunity of being heard.
Key Issues
Whether the appeal was filed within the stipulated time and whether the capital gains were correctly assessed, or if the case needs to be remanded for fresh adjudication.
Sections Cited
Section 250, Section 147, Section 148, Section 144B, Section 49(1)
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Income Tax Appellate Tribunal, NAGPUR “SMC” BENCH :: NAGPUR
Before: SHRI NARENDER KUMAR CHOUDHRY
This appeal has been preferred by the Assessee against the order dated 24/08/2024 impugned herein passed by the National Faceless Appeal Centre (NFAC)/Commissioner of Income Tax (Appeals), Delhi (in short, ‘Ld. Commissioner’) u/sec. 250 of the Income Tax Act, 1961 (in short, ‘Act’) for the A.Y. 2015-16.
(Mayura Nilesh Lati) 2. At the outset, it is observed that there is a delay of 103 days in filing the instant appeal, on which Assessee by filing sworn affidavit stated the reasons for causing delay that Assessee is a house-wife and she has limited experience with financial and legal matters and rely on professional for such guidance and she did not monitor routinely her email account as she has not involved in any professional or business activities, therefore prayed that delay may be condoned.
On the contrary, learned Departmental Representative (DR) refuted the claim of the Assessee.
Considering the reasons stated by the Assessee, as genuine, bonafide and unintentional, the delay 103 days in filing the appeal is hereby condoned.
Facts of the case in brief are that Assessee is an individual, house-wife and not filed return of income for the assessment year under consideration and she did not have any taxable income. The Assessing Officer noticed, on perusal of the information available with the Department, that Assessee had sold two immovable property valued at Rs. 97.50 Lac and as such capital gain on this transaction was not offered for taxation. The AO reopened the case of the Assessee u/sec. 147 of the Act by recording the reasos for reopening and issued notice u/sec. 148 of the Act. In response to which, the Assessee filed reply and explained that Assessee’s father owned a property, who decided to construct a multi storied residential complex, for which he had incorporated a partnership firm along with her brother Mr. Rahul Ravindra Mangrulkar. The said firm had developed the apartment know and styled as “Padamnhabh Residency” having four flats and a duplex. The Assessee’s father expired on 28/11/2011 leaving three legal heirs, (Mayura Nilesh Lati) in which Assessee is one of them. The Assessee was specifically asked to furnish necessary evidence in the form of ITR of the firm, its final accounts, sales account, stock inventory, bank statement etc, however, no such information/documents was provided. Therefore, the AO valued the properties at Rs. 1,13,63,000/- and determined long term capital gain of the Assessee’s share at Rs. 37,87,667 being 1/3rd and accordingly framed assessment u/sec. 147 r.w.s. 144B of the Act.
The Assessee, being aggrieved, preferred first appeal before the Ld. Commissioner. The Ld. Commissioner held that since the property was inherited by the Assessee, cost of acquisition by the previous owners should have been considered as per section 49(1) of the Act. But the AO could not arrive at such cost since no documents were filed before him at the assessment stage. Even in appellate stage also, the Assessee has not filed such details like cost of acquisition and cost of construction, hence, Ld. Commissioner affirmed the action of the AO.
Now, the Assessee is in appeal before this Tribunal in the instant appeal.
From the orders of authorities below, it appears that the Assessee has not substantiated its claim of long term capital gain by producing relevant documents and submissions, which resulted into making variation to the tune of Rs. 37,87,667/- in the hands of the Assessee and, therefore, the Assessee deserves no leniency, however, considering the peculiar facts and circumstances in totality, as the issue involved also remained to be adjudicated in its right perspective and proper manner and, therefore, for just and proper decision of the case and substantial justice and equitable (Mayura Nilesh Lati) relief, this Court is inclined to remand the instant case to the file of Ld. Commissioner for decision afresh, as also prayed for by the learned Amicus Curiae, suffice to say, Ld. Commissioner shall provide reasonable opportunity of being heard to the Assessee.
The Assessee is also directed to comply with the notices and file the relevant submissions/documents which would be essentially required. In case of subsequent failure, Assessee shall not be entitled for any leniency. Thus, the case is, accordingly, remanded to the file of Ld. Commissioner for decision afresh.
In the result, Assessee’s appeal is allowed for statistical purposes.
Order pronounced in the open court on 26.06.2025.