Loading judgment…
Facts
The assessee, an individual, filed an ITR reporting sale of shares as exempt Long Term Capital Gain. The Assessing Officer, after reopening the assessment, treated the LTCG as fictitious and unexplained money under Section 69A, completing an ex-parte assessment due to the assessee's non-response. The CIT(A) subsequently dismissed the assessee's first appeal, also ex-parte, rejecting the condonation of a 95-day delay in filing.
Held
The Tribunal found that the assessee, a super senior citizen, lacked access to the ITD Portal, which constituted sufficient cause for not participating in the assessment and appellate proceedings. To ensure justice and fair play, the Tribunal restored the appeal to the CIT(A), directing a fresh decision after providing the assessee a full opportunity of being heard, considering their age and portal access issues.
Key Issues
Whether the CIT(A) was justified in rejecting the condonation of delay and dismissing the appeal ex-parte, especially given the assessee's status as a super senior citizen and their inability to access the ITD Portal, thereby denying an opportunity of being heard.
Sections Cited
148A(d), 148, 143(3), 144, 144B, 69A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, DELHI ‘E’ BENCH,
Before: SHRI SAKTIJIT DEY, & SHRI NAVEEN CHANDRA
PER NAVEEN CHANDRA, ACCOUNTANT MEMBER:-
This appeal by the assessee is preferred against the order of the NFAC, Delhi dated 31.10.2023 pertaining to A.Y. 2017-18.
Representatives of both the sides were heard at length. Case records carefully perused. Relevant documentary evidence brought on record duly considered in light of Rule 18(6) of the ITAT Rules.
The sum and substance of the grievance of the assessee is that the NFAC has grossly erred in deciding the appeal ex- parte by rejecting the assessee’s plea for condonation of delay in filing the first appeal without affording any opportunity of being heard.
Briefly stated, the facts of the case are that the assessee is an individual and has filed his return of income on 09.10.2017 declaring total income of Rs. 5,86,380/-. The assessee sold shares of Indusind Bank Ltd periodically during the year but the sale consideration has not been offered as LTCG for taxation. Instead, the assessee has reported the same as exempt long term capital gain of Rs. 56,56,871/- in the return of income.
Subsequently, the Assessing Officer passed order u/s148A(d) of the Act on 23.07.2022 and reopened assessment proceedings by issuing notice u/s 148 of the Act.
In response, the assessee filed his return of income declaring the same income.
Thereafter, despite several opportunities given to the assessee by issuing various notices/letters, the assessee did not respond to any of the notices. Details of opportunities given by the Assessing Officer to the assessee are furnished at Pages 2 and 3 of the assessment order. Therefore, the Assessing Officer proceeded to decide the appeal exparte u/s 143(3) r.ws. 144/144B of the Income tax Act. The Assessing Officer held that the Long Term Capital gain on sale of shares of Indusind Bank was fictitious and added the amount of Rs 58,42,670/- so received as unexplained money under section 69A. The Assessing Officer also added Rs 1,16,853/- as commission paid to avail the fictitious exempt LTCG. Thus the total income was assessed at Rs. 65,45,903/-.
Aggrieved, the assessee went in appeal before the ld. CIT(A).
8. The ld. CIT(A), at the very outset, observed that the appeal was late by 95 days and finding no plausible reason for the delay, rejected the application for condonation of delay of 95 days and dismissed the appeal accordingly.
9. Before us, the ld. counsel for the assessee vehemently argued that due to unprecedented COVID -19, the notices were not properly served upon the assessee. The ld. counsel for the assessee relied upon various judicial decisions.
Per contra, the ld. DR fairly conceded that the orders of the ld. CIT(A) are ex- parte.
Having heard the rival submissions, we are of the considered view that the assessee being a super senior citizen and having no access to his ITD Portal to get knowledge of notices issued by the Revenue authorities, was prevented by sufficient cause in attending the assessment proceedings, which resulted in ex-parte order by the first appellate authority. Therefore, in the interest of justice and fair play, we deem it fit to restore the appeal to the file of the ld. CIT(A).
The ld. CIT(A) is directed to decide the appeal afresh after affording a reasonable and adequate opportunity of being heard to the assessee keeping in mind the age of the assessee and his inability to access his ITD Portal.
The assessee is also directed to provide necessary information/documents as required by the authorities.
In the result, the appeal of the assessee in is allowed for statistical purposes.
The order is pronounced in the open court on 16.04.2024.