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Income Tax Appellate Tribunal, MUMBAI BENCHES “B”, MUMBAI
Before: SHRI SHAMIM YAHYA (AM) & SHRI RAM LAL NEGI (JM)
O R D E R PER RAM LAL NEGI, JM These are the cross appeals filed by the revenue and the assessee against the orders dated 15.11.2016 passed by the Ld. Commissioner of Income Tax (Appeals)-50, Mumbai (for short ‘the CIT (A)’), pertaining to the assessment year 2008-09, whereby the Ld. CIT (A) has partly allowed the appeal filed by the assessee against the assessment orders passed u/s 153A r.w.s 143 (3) of the Income Tax Act, 1961 (for short the ‘Act’). Assessment Year: 2008-09 Brief facts of the case are that the assessee engaged in the business activities of furniture making an interior decoration, filed its return of income of the assessment year under consideration declaring total income of Rs. 93,23,198/- The return was processed u/s 143 (1) of the Act. Search and seizure action u/s 132 of the Act was carried out at the residence and business premises of Rogan Group related entities on 26.05.2011 by Dy. DIT (Inv.), Mumbai. The search action was also carried at UCO Bank, Gaondevi and locker No. 580 of the assessee was also searched on 07.06.2011. Accordingly, notice u/s 153A of the Act was issued on 14.01.2013 and in response to the said notice, the assessee filed return of income declaring the same income which had been declared in the original return. In response to the notices u/s 143 (2) and 142 (1), the authorized representative attended the proceedings and submitted the details called for. Since, the assessee had offered the Short Term Capital Gain of Rs. 14,16,500/- and Long Term Capital Gain at Rs. 77,96,133/-. The AO asked to assessee to furnish the details in respect of capital gains arising sale of office commercial premises which was sold for 1,47,25,000/- the assessee contended that the proceeds have been divided into two parts i.e. sale proceeds on the land which was treated as Long Term Capital Gain and sale proceeds on structure which was treated as Short Term Capital Gain. The AO rejecting the contention of the assessee determined the Short Term Capital Gain of Rs. 1,45,03,152/- after deducting expenditure incurred on transfer and WDV as on 01.04.2007. The assessee challenged the assessment order before the Ld. CIT (A). The Ld. CIT (A) after hearing the assessee and partly allowed the appeal of the assessee.
2. The revenue has challenged the impugned order passed by the Ld. CIT (A) by raising the following effective ground:- Assessment Year: 2008-09 “Whether on the facts and in the circumstances of the case and in law, the Ld. CIT (A) was justified in deleting the addition of long term capital gain of Rs. 1.45 crore without appreciating the fact that the agreement for sale for the shop do not include the sale of land and A.O. was justified invoking the provisions of section 50C of the I.T. Act, 1961.”
3. Before us, the Ld. Departmental Representative (DR) relying on the assessment order passed by the AO submitted that the Ld. CIT (A) has wrongly deleted the addition made by the AO of long term capital gain amounting to Rs. 1.45 crore without appreciating that the agreement for sale of shop do not include the sale of land, therefore the AO has righty invoked the provisions u/s 50C of the Act. The Ld. DR further pointed out that the assessee had shown the asset under the head workshop premises in the balance sheet for the AY 2006-07 and the assessee was allowed depreciation on this industrial unit. Therefore, the computation of capital gain on depreciable asset is covered by the provisions of section 50 of the Act. In the light of the aforesaid facts, the Ld. DR submitted that the findings of the Ld. CIT (A) are contrary to the expressed provisions of law, hence, liable to be set aside.
4. On the other hand, the Ld. counsel for the assessee relying on the order passed by the Ld CIT (A) submitted that since the addition of short term capital gain is not based on any seized document, the addition is not sustainable in the light of the decision of the Hon’ble Bombay High Court in the case of Continental Warehousing (58 taxman.com 78). Moreover, the assessment for the assessment year under consideration had attained finality before the date for search i.e. on 26.05.2011. In view of the aforesaid fact, the Ld. counsel submitted that there is no infirmity in the order of the Ld.CIT (A) to interfere with the same. 5. We have heard the rival submissions and also perused the material on record in the light of the rival contentions of the parties. The only grievance of the revenue is that the Ld. CIT (A) has wrongly deleted the addition of Rs. Assessment Year: 2008-09 1,45,03,152/- to the income of the assessee by treating the entire gain from sale of property as short term capital gain as against the contention of the assessee that the sale proceeds consists of two components sale proceeds of land which has been treated as long term capital gain and sale proceeds of structure, which has been treated as short term capital gain. The Ld. CIT (A) has directed the AO to accept the computation of long term capital gain and short term capital gain furnished by the assessee holding as under:-
“6.8 In ground No. 5 of appeal, the appellant has contended that the addition of short term capital gain is not based on any seized document and, therefore, the addition is not sustainable in view of the decision of the Hon’ble Bombay High Court in the case of Continental Warehousing Corporation (58 Taxmann.com 78). In the course of appeal proceedings, the appellant submitted that the assessment for A.Y. 2008-09 had attained finality before the date of search i.e. 26.05.2011. In the course of the appeal proceedings, the claim of the appellant was communicated to the Assessing Officer by a letter 04.08.2016 and he was requested to furnish his comments in respect of the appellant’s claim. The Assessing Officer has not responded to the letter. Therefore, I presume that the assessment for A.Y. 2008-09 had indeed attained finality as claimed by the appellant and that the addition was not based on any seized material. 6.9 Following the decision of the Bombay High Court cited by the appellant, I hold that the addition made by the Assessing Officer is not sustainable. Accordingly, I direct the Assessing Officer to accept the computation of long term capital gain and short term capital gain furnished by the appellant. Therefore, the 5th ground of appeal is allowed.”
6. As pointed out by the Ld. CIT (A), in the present case, the assessment had attained finality before the date of search and during the course of appellate proceedings, the claim of the assessee was communicated to the AO for furnishing his comments in respect of the assessee’s claim, however, the Ld. CIT (A) did not receive any response from the AO. Further, the Ld. CIT (A) Assessment Year: 2008-09 has allowed this ground of appeal of the assessee following the decision of the Hon’ble Bombay High Court in the case of Continental Warehousing Corporation (supra). Hence, we do not find any infirmity in the order passed by the Ld. CIT (A). We therefore uphold the findings of the Ld. CIT (A) and dismiss this ground of appeal of the revenue. The assessee has challenged the impugned order passed by the Ld. CIT (A) by raising the following effective ground:- “The learned CIT (A) erred in confirming the addition of Rs. 4,80,000/-.”
2. Since, there is a delay of 343 days in filing the present appeal, assessee has filed an application for condonation of delay, duly supported by an affidavit, on the ground that the order dated 15.11.2016 was received by the assessee on 21.01.2017. In the said order, the Ld. CIT (A) granted relief of Rs. 3,00,000/- and out of the total addition of Rs. 7,80,000/- made by the AO. Since, the Ld. CIT (A) has accepted the seized material/document and granted partial relief to the assessee, the assessee made an application before the Ld. CIT (A) for rectification of mistake apparent from the record. The assessee further made request vide letter dated 09.08.2017 for deciding the pending rectification application. The assessee also personally requested the Ld. CIT (A) in this regard, however, on 24.01.2018, the assessee was informed by the then CIT (A) that the rectification application is not maintainable. Accordingly, the assessee filed the present appeal.
In view of the aforesaid facts, the Ld. counsel for the assessee submitted that since, there is no negligence or inaction on the part of the assessee in filing the present appeal within the limitation period and since the delay has been caused due to the circumstances beyond control of the assessee, the application for condonation of delay may be allowed and the delay may be Assessment Year: 2008-09 condoned in the interest of justice. To substantiate its claim the Ld. counsel relied on the judgment of the Hon’ble Allahabad High Court in the case of Subhash Malik vs. CIT 325 ITR 243 (Allahabad) and submitted that in the said case it has been held that appeal filed immediately after rejection of rectification application is sufficient cause for delay in filing appeal.
4. On the other hand, the Ld. Departmental Representative (DR) rejected the contention of the assessee on the ground that the delay is inordinate and the assessee has failed to establish the sufficient cause which prevented it from filing the present appeal within the limitation period.
5. We have perused the material on record including the case law relied upon by the Ld. counsel for the assessee. As submitted by the Ld. counsel for the assessee, the assessee filed rectification application before the Ld. CIT (A) within the limitation period which remain pending with the Ld. CIT (A) till 24.01.2018 and the assessee remained under the impression that since the rectification application is pending before the Ld. CIT (A), it cannot file an appeal against the said order. However, on 24.01.2018, the Ld. CIT (A) informed the assessee that the mistake is not maintainable, the assessee filed the present appeal. In the case of Subhash Malik vs. CIT (supra), the Hon’ble Allahabad High Court has held that Rules of limitation are not meant to destroy the rights of the parties rather the idea is that every legal remedy must be kept alive for a fix period of time, therefore, the court’s discretion should be exercised in favour of the hearing and not to shut out hearing. The Hon’ble Supreme Court in the case of Collector Land Acquisition vs. Mst. Katiji & Others, 1987 AIR 1353 has laid down the following principles of law while dealing with the issue of condonation of delay: “1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that Assessment Year: 2008-09 can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”
Hence, in the light of the principles of law laid down by the Hon’ble Supreme Court and the Hon’ble Allahabad High Court discussed above, we allow the application and condone the delay of 343 days in the interest of justice and permitted the Ld. counsel for the assessee to argue the case on merits.
The Ld. counsel submitted that the AO made addition of Rs. 7,80,000/- on the basis of information contained in page No. 11 of the seized documents without taking into consideration the contention of the assessee. In the first appeal, the Ld. CIT (A) granted benefit of Rs. 3,00,000/- holding that the assessee has paid the said amount to Mr. Jayantilal by cheque during the previous year. However, the Ld. CIT (A) has not considered the amount of Rs. 5,75,000/- paid by cheque to Sh. Jayantibai Group in the previous year. The Ld. counsel further submitted that since the payment was made by cheque, the Ld. CIT (A) has wrongly sustained the addition of the remaining amount without assigning any reason. Assessment Year: 2008-09
On the other hand, the Ld. DR supporting the order passed by the Ld. CIT (A) submitted that since the Ld. CIT (A) has given partial benefit after taking into consideration the documents submitted by the assessee, there is no factual or legal infirmity in the order passed by the Ld. CIT (A) to interfere with.
We have heard the rival submissions of the parties and also perused the material on record. We notice that the Ld. CIT (A) has given benefit of Rs. 3,00,000/- paid to Mr. Jayantilal proprietor, Moden Decor on the basis of payment made by the cheque. However, the Ld. CIT (A) has not given any reason for rejecting the contention of the assessee that a further sum of Rs. 5,75,000/- had been given to Jayantibai by cheque. As pointed out by the Ld. counsel for the assessee, the assessee has submitted the copy of ledger account before the Ld.CIT (A) and the entries therein establishes that an amount of Rs. 5,75,000/- has been paid by the assessee to Sh. Jayantibai. Since, the Ld. CIT (A) has not given any findings on the contention of the assessee that it has also paid Rs. 5,75,000/- to Mr. Jayantilal, we deem it necessary to set aside this issue to the file of the Ld. CIT (A) for deciding the same afresh in the light of the aforesaid contention of the assessee. Hence, we set aside this issue to the file of the Ld. CIT(A) for deciding the same afresh after affording a reasonable opportunity of being heard to the assessee. In the result, revenue’s appeal is dismissed and the assessee’s appeal is allowed for statistical purposes.