SMT. SHEETAL RASHMIN PATEL,AHMEDABAD vs. THE I. T. O. WARD-2, GANDHIDHAM, GANDHIDHAM

The additional grounds of appeal raised by the assessee, are as follows;

At the outset, that the appeal filed late by 2657 days. The Ld. AR of the assessee has filed an application for condonation of delay, supported by Affidavit. The relevant Para of the application for delay is as under;

During the course of argument, the Ld. AR of the assessee stated that the assessee moved from old address to her new address, i.e., Gandhidham to Mehsana, due to this reason, we could not comply with the notices, therefore the delay in filling the appeal is accrued. That the Ld. AR requested to the assessee to delay may kindly be condoned, and appeal heard on merit. On the contrary, the Ld. Sr.DR for the revenue has not objected to the prayer of the Ld. AR.

We have heard both the parties. We note that delay of filing before this Tribunal was due to change of address of the assessee, therefore the assessee has not received any notice regarding the assessment proceeding. We have consider the submission made by the Ld.AR on behalf of the assessee, and in the absence of any contrary material of fact available on record, the assessee found to have sufficient cause for delay in filing the present appeal u/s. 253(5) of the Act, empowers the ITAT to admit an appeal after reason explained by the assessee, It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition v. Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whatever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice oriented approach. we are of the view that, in the interest of justice, we condoned the delay in filing appeal by 2657 days.

Brief facts of the case that the assessee had filed return of income for AY 2007-08 on 27.03.2008 by electronic media declaring total income of Rs. 4,16,790/-. The same was proceeded u/s. 143(1) of the Act. This case was selected for scrutiny. Accordingly, first notice u/s. 143(2) was issued on 19.09.2008 and served on the assessee on 24.09.2008 through RPAD. Nobody attended for the said notice. Due to change of incumbent in the office, a fresh opportunity of being heard was granted to the assessee by issue notice u/s. 143(2) of the Act and the same was served upon the assessee. Subsequently, notice u/s. 142(1) with questionnaire were issued and served upon the assessee. The assessee is not having any regular source of income but during the year under consideration she won a Television Contest and become eligible to purchase jewellery worth of Rs. 14,00,030/- for Rs. 14/- In this regard, the assessee has submitted a letter from Zee Telefilms Limited intimating her that she won a tele contest 'Jeeto Zee Bhar Ke" in September, 2006 that by winning the contest, the assessee won jewellery worth of Rs. 14,00,030/- by making a token payment of Rs. 14/-. The TDS certificate also shows that Abhay Kumar Godha, Prop. Eros Stones, Jaipur has given jewellery worth of Rs. 14,00,030/- as she won the same in the contest. M/s Eros Stones had given the winning amount in kind and made TDS as per the provision of section 194B of the Act. Such payment of TDS was made after taking the amount of tax received from the assessee, the reason for showing the income at lesser amount. In response, the assessee submitted the reply vide letter dated 15.12.2009, which is reproduced hereunder; “As to your first contention that income under the head "income from other sources should be taken at Rs. 14,00,016/- instead of Rs. 4,16,790/- as claimed by me, it is most respectfully submitted that: a. The amount sought to be taxed under clause (b)of ss (2) of s. 56 of Income-fax Act, 1961 is 'winning from lotteries,..... And other games of any sort.. or nature whatsoever. b. The emphasis is on the word 'winnings', which is not defined under the Income- tax Act, 1961. C. Winnings, if received in kind, would ordinarily have to be quantified with reference to its fair market value, if it's a movable asset. d. Fair market value, as per s. 2(22B), means the price that the asset would ordinarily fetch on sale in the open market on the relevant date. e. In my case, the amount of Rs. 14,00,016/- is the value ascribed by M/s Eros Stones to a piece of jewellery which they intended to offer for free (considering Rs. 14/- to be immaterial). This is very important as no person would have paid Rs. 14,00,016/- for an item of jewellery which ultimately was sold for Rs. 4,16,790/-. If an asset has to be given away as gift, any value can be placed on it by the person giving it in order to attract viewers during the promotion contest. M/s Eros Stones fixed the price of jewellery substantially higher in order to make the gift attractive and at the same time, reduce their investment in the promotion. This is made very clear by the sale invoice of M/s Arihant Jewellers, Ahmedabad, which has been enclosed by me with my earlier submissions. f. It is therefore, prayed that the amount of Rs. 4,16,790/- should be treated as the income under the head 'income from other sources.

During the course of hearing, the Ld. AR stated that in this regards, we understand that if a jewellery is sold at Rs.4,16,790/- then it is clearly proved that the valuation of jewellery is Rs.4,16,790/-. This fact can be verified from the invoice of Arihant Jewellers. Thus, value of jewellery cannot be taken at the price which is considered by payer for the purpose of TDS (i.e.

On the contrary, the Ld. Sr. DR for the revenue left the issue on the wisdom of the Tribunal. The Ld. Sr. DR submitted written submission, which is reproduced below; “2. This submission is in response to the appeal ITA-182/RJT/2022 for the assessment year 2007-08, pending before the Hon'ble Tribunal. During the course of hearing on 03.03.2025, the Learned Authorized Representative (Ld. AR) for the assessee submitted that the assessee did not receive the order of the CIT(A), and as such, could not file the appeal in a timely manner. The Ld. AR further stated that the assessee made an RTI request on 12.01.2022 to ITO-2 Gandhidham and received the order on 02.03.2022. 3. Service of the Order: A letter from the CIT(A) Unit-3, Rajkot, dated 14/02/2024, has been submitted, which clearly states that the order passed by the CIT(A) was duly served on the Authorized Representative (AR) of the assessee on 09.10.2014. The service was acknowledged in ITNS-50,. The tear-off portion of the ITNS-50 has been signed and acknowledged by the AR of the assessee on the said date, confirming the receipt of the order.” 4. Contradictory Submission: The submission made by the Ld. Alt during the hearing on 03.03.2025, stating that the assessee did not receive the order until 02.03.2022, is in direct contradiction to the acknowledgment of receipt from the CIT(A). The order had already been served to the AR on 09.10.2014, as confirmed by the ITNS-50 acknowledgment, which shows that the order was duly received by the assessee's representative much earlier than the alleged RTI request and the subsequent receipt of the order in 2022. 5. RTI and Delay in Filing the Appeal: The RTI request made by the assessee on 12.01.2022, and the subsequent receipt of the order on 02.03.2022, is irrelevant as the service of the order had already been completed several years prior. The delay in filing the appeal cannot be attributed to the non-receipt of the order, as it had been duly served much earlier. 6. Delay Not Justified: The appeal should have been filed within the prescribed time limit from the date of service of the order, which was on 09.10.2014. The delay in filing the appeal, therefore, cannot be justified on the grounds of non- receipt of the order, as the evidence shows that the order was already received by the AR in 2014, 7. Affidavit Not Submitted: It is pertinent to note that the assessee has not submitted any affidavit stating the non-receipt of the order. In the absence of an affidavit from the assessee regarding non-receipt of the order, the claim of non- receipt becomes unreliable. The Hon'ble Supreme Court in Mehta Parikh & Co. v. CIT (AIR 1956 SC 554) emphasized that an affidavit is a crucial piece of evidence in matters relating to non-service or non-receipt of documents. Similarly, in State of Bihar vs. Radhakrishna Singh (AIR 1983 SC 684), the Hon'ble Supreme Court held that non-submission of an affidavit leads to the inference that the claim of non-receipt is not genuine. Furthermore, in K.K. Velusamy vs. Palanisamy (2011) 11 SCC 275, it was held that in the absence of an affidavit or other evidence supporting the claim of non-receipt, the court may reject such claims.

Conclusion: In light of the above, we respectfully request that the delay in filing the appeal be not condoned, as the assessee's claim of non-receipt of the order due to relocation is not supported by the facts. The acknowledgment of receipt from the CIT(A) in 2014 clearly establishes that the order was served well in advance of the RTI request and the alleged receipt of the order in 2022.

Based on the facts presented above, it is evident that the delay in filing the appeal is not justified. The assessee's claim of non-receipt of the order due to relocation is unfounded, as the order was duly served well within the prescribed time. In light of these facts, we respectfully request the Hon'ble Tribunal to dismiss the appeal of the assessee and reject the plea for condonation of delay.

We have heard both the parties and perused the material available on record. We note that the assessee has filed Return showing income and winning lottery of Rs. 4,16,790/-, which is sale price of the jewellery. We note that the assessee get the jewellery to the M/s. Eros Stones to higher price than the market value of Rs. 14,00,030/-. Which is appellant had won a contest arranged by Zee Telefilms wherein she got a prize to purchase jewellery worth Rs. 14 lakhs for Rs. 14 only. As per the letter received from Zee Telefilms, she was to receive the jewellery from Eros Stone, Jaipur by paying Rs.14/-. The appellant however has shown income of Rs.4,16,790/- as income from other sources on account of winning from television contest. The appellant claimed that the actual value of the jewellery was only Rs.4,16,790/- and not Rs.14 lakhs as claimed by M/s. Eros Jewllers, Jaipur. The A.O. did not accept the appellant's contentions. He observed that the TDS certificate showed the value of jewellery as Rs.14,00,030/-. The appellant had also deposited TDS of Rs.4.71,254/- towards TDS with Eros Stones, Jaipur. This is also evident from the TDS certificate issued by M/s. Eros Stones, Jaipur. During appellate proceedings, appellant has raised the same contentions. We note that the Ld. CIT(A) has observed that the assessee could not able to prove that the jewellery sold be her is the same jewellery that received from M/s. Eros Jwellers and won in television contest. We further consider that the assessee did not have any regular income, and the assessee worked as artist in the TV and from there the assessee win contest, however, the assessee explained his case about the her income and jewellery won in the TV contest, but since the Ld.CIT(A) has doubted the jewellery and assessee was not given proper opportunity to prove about the jewellery is same or not. The Ld.CIT(A) did not enquired about the jewellery is same or not. Therefore, we inclined to accept the request of the Ld.CIT(A), and set aside the order of the Ld. CIT(A) and remand back to the file of the Ld.AO, and direct the Ld.AO to enquiry about the jewellery is same or not, therefore, appeal of the assessee is allowed.

In the result, the appeal of the assessee is allowed, for statistical purposes.