SRI. B.K. PRAKASH KUMAR,BANGALORE vs. ITO, BANGALORE

There is a delay of 1,274 days in filing the present appeal. The assessee has filed an application for condonation of delay which has been supported by the Affidavit of the assessee as well as Affidavit of one Mr. M.G. Vinaya Simha, CA, representative of the assessee.

We have heard the learned Authorised Representative as well as learned Departmental Representative and perused the reasons explained in the affidavit for delay in filing the appeal. It has been stated in the Affidavit that the assessee is a senior citizen of 73 years old and completely depending on its CA in respect of the tax matters. It was further stated that the assessee was not aware about the impugned order passed by the CIT (Appeals) exparte as this order was received by the CA of the assessee who was authorized and supposed to represent before the CIT (Appeals). Thus the assessee has explained that the representative who has falsely informed the assessee with regard to the pendency of the appeal before the CIT (Appeals) whereas the CIT (Appeals) had already dismissed the appeal of the assessee for non- appearance. Therefore, the assessee could not file the present appeal in time as there was negligence on the part of the representative of the assessee. This explanation of the assessee has been accepted/ corroborated by the CA in his Affidavit dt.23.4.2014 wherein it has been stated on oath that due to his ill health he could not attend the hearing before CIT (Appeals) therefore, there is a professional negligence on his part in not attending the matter of the clients including the assessee before the CIT (Appeals). The CA has accepted his negligence in the case of the assessee for not attending before the CIT (Appeals) and also not informing the assessee about the outcome of the appeal before the CIT (Appeals). The learned Authorised Representative of the assessee has also pointed out that in this matter, the issue is only regarding the assessment of capital gains arising from transfer of property in question which was owned by the assessee, his mother and other family members however, said capital gain arising from the transfer of property was already assessed by the Assessing Officer in the hands of the assessee's mother. The learned Authorised Representative has filed the assessment order dt.29.12.2009 wherein the Assessing Officer has assessed the capital gain arising from transfer of the property in question bearing No.20, Venkataswami Naidu Street, Vasant Nagar, Ward No.78, Bangalore vide Agreement dt.12.11.2005 for a consideration of Rs.73,20,000. We find that the Assessing Officer has taken into consideration the chargeability of tax of capital gain arising from the transfer of the property in question vide Agreement dt.12.11.2005 in the hand of the mother of the assessee who had already died and the same capital gain was again assessed to tax in the hand of the assessee. We note that the sale consideration as well as agreement is same however only 25% of share of the assessee was assessed in the hand of the assessee before us. Once the capital gain was assessed by considering the entire sale consideration in the hand of the mother then assessing the share of the assessee would amount to double taxation of the same income.

In view of the above facts and circumstances of the case, when the assessee has explained sufficient cause of delay as well as when the entire capital gain arising from the transfer of property was already

assessed in the hand of the mother of the assessee then the matter is required to be considered and decided on merit instead of dismissing on technicalities. We find that the assessee could not have achieved any ulterior purpose by filing the appeal belatedly as the capital gain was already charged to tax in the hand of the mother. Therefore in the facts and circumstances of the case, we incline to condone the delay of 1,274 days.

As regards the merits of the matter, we find that the CIT (Appeals) has dismissed the appeal of the assessee in limine for want of prosecution without going into the merits therefore the matter is required to be decided on merits. The assessee has already explained the reasons for non-attendance before the CIT (Appeals) as due to the negligence on the part of CA who was representing the assessee.

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