SHRI ATUL CHANDRAKANT SHAH,VADODARA vs. DCIT, CIRCLE-2(1)(2), VADODARA

O R D E R

PER RAJPAL YADAV, VICE PRESIDENT :

“First we take up ITA No.593/Ahd/2019. It is an appeal filed by the assessee against the order of the learned CIT(A) dated 26.08.2013. The Registry has pointed out that the appeal of the assessee is time barred by 1969 days. In order to explain the delay, the assessee has filed a letter dated 5th April 2019, along with the appeal paper. This letter reads as under:-

“From: Shri Hardik Suryakant Shah Prakash Chemicals Agencies Mahajan Lane, Roapura, Vadodara. Date: 05.04.2019 To, Income Tax Appellate Tribunal, 3rd and 4th Floor, Abhinav Arcade, Opposite Municipal school, Ellis bridge, Ahmedabad - 380006

Respected Sir, Sub: Appeal before ITAT in case of Shri Hardik Suryakant Shah for AY 2009-10 In the matter of the above referred assessee, we were in receipt of the appellate order u/s 143(3) dated 26.08.2013 on 17.09.2013 wherein the appellate order had confirmed the addition of Rs. 11,12,018/- u/s 50C. However your Honour we disagree with the said addition. This & 595/Ahd/2019 Shri Atul Chandrakant Shah Vs. DCIT 4 addition was made in respect of other co-owners of the concerned property. However we were in respect of the valuation report from the DVO in case of other co-owners, thereby the appellate order was being awaited. On account of this reason, there was a delay in the filing of the appeal. Secondly, our earlier CA is situated at Ahmedabad, so there was a communication gap and inadvertently appeal was remained to be filed so in the intent of justice, we request your Honour to condone the delay. Thus, as the appellate order was held in favour of the assessee, therefore w e request your Honour to accept the appeal and condone the delay. Thanking You, Yours Faithfully Shri Hardik Suryakant Shah (Authorized Signatory) 3. With the assistance of learned representatives, we have gone through the record carefully. We have perused the application for condonation of delay. To our mind, this application does not disclose any reason for not challenging the order of the learned CIT(A). The only argument raised in the application is that there were co-owners in whose cases a valuation report was called for from the DVO and they were waiting the outcome of those appeals. The learned Counsel for the assessee also contended that since it was an addition made under Section 50C of the Income-tax Act by assuming the sale consideration equivalent to the amount on which stamp duty was paid; therefore it was necessary to ascertain the true value of the property under Section 50C(2) of the Act. This exercise was going on in the case of other co- owners and, therefore, the assessee did not file the appeal. When the appeals of the other co-owners have been decided, the assessee also thought to file the appeal. We are not impressed by all these contentions. It is the assessee who should have taken vigilant step in his own case. The assessee could file application before the Assessing Officer under Section 50C(2) of the Act. He could raise plea before the learned CIT(A), but after the decision of the learned CIT(A), he has accepted the result and did not chose to file the appeal for long six years. There is hardly any plausible explanation for this delay. Therefore, we do not find any merit in the explanation for condonation of delay. The appeal of the assessee is, therefore, dismissed being time barred.

4. Now we take up ITA No. 592/Ahd/2019. As observed in the earlier appeal, it emerges out that the appeal of the assessee was decided on 26.08.2013. Thereafter, the assessee moved an application on 30.12.2016 & 595/Ahd/2019 Shri Atul Chandrakant Shah Vs. DCIT 5 under Section 154 of the Act pointing out apparent error in the order of the learned CIT(A). The case of the assessee was that nine persons have sold a property for a sale consideration of Rs.54,00,000/-. Each vendor got Rs.6 lakhs; however, for the purpose of stamp duty valuation, it was valued at Rs.1,54,08,163/- and, therefore, the sale consideration for the purpose of computation of capital gain was taken at Rs.11,12,018/- in each hand. Thereafter, in one of the co-owner’s case, a reference was made to the Valuation Officer who determined the value of the property at Rs.55,94,230/- . This valuation report came on 29.03.2016. On the basis of this valuation report, each co-owner was deemed to have received the sale consideration at Rs.6,21,581/- and, on the basis of this amount, the capital gain was to be computed. The assessee filed an application within four years from the date of the order of the learned CIT(A) pleading therein that there is an apparent error in the order. This application of the assessee has been rejected by the learned CIT(A) on the ground that when the appeal was decided there was no apparent error, because this document was not available.

5. With the assistance of the learned representatives we have gone through the record carefully. The nine co-owners have sold the property and the co-owners have equivalent shares i.e. 1/9 in each hand. Under sub-clause (2) of Section 50C of the Act, the Assessing Officer himself could made a reference to the DVO for determining the true value of the property, because Section 50C authorizes the Assessing Officer to take a deeming consideration for sale of the property on the ground that stamp duty was paid on a higher amount. In one of the co-owner’s case, the District Valuation Officer of the Department has determined the value at a very lower figure, i.e. Rs.55,94,230/- as against value adopted under the deeming provision at Rs.1,54,08,163/-. To our mind, for doing the complete justice to an assessee, the learned First Appellate Authority ought to have treated it as an apparent error. Each co-owner should have been treated at par. It is pertinent to observe that the quasi-judicial authorities are being respected not on account of their powers to legalize the injustice on technical ground, but for their capabilities of removing injustice and is expected to do so. In the present case, the learned First Appellate Authority failed to remove the injustice with the assessee. We deem it that there was an apparent error available on record. The valuation report is in existence though in the case of other assessees and, in the moment it is brought to the notice of the learned CIT(A), it should have taken cognizance of that report. Considering that aspect of the matter, we allow the application of the assessee moved under Section 154 of the Act and set aside the impugned order dated 23.01.2019. The error committed in the order dated 26.08.2013 is rectified. The Assessing Officer is directed to take sale consideration in the hands of the assessee equivalent to the amount & 595/Ahd/2019 Shri Atul Chandrakant Shah Vs. DCIT 6

taken in the case of Prakash Chunilal Shah and Chirag Prakash Shah. Though we have not interfered in the order of the learned CIT(A) dated 26.08.2013 because the appeal was time barred before us, but by rectifying the error, which is a proceeding well taken by the assessee within the limitation, the assessee is able to achieve the same result.

6. In the result, the appeal of the assessee in is allowed, whereas the appeal in ITA No.593/Ahd/2019 is dismissed.”