SANJAY BABAN VAITY,MUMBAI vs. ITO WARD 34(3)(1), MUMBAI
Facts
The assessee filed a return of income, but the case was reopened under section 147 of the Income Tax Act, leading to a reassessment order with an addition of Rs.33,63,330/- as short-term capital gain. The assessee filed an appeal before the Ld. CIT(A), but due to non-compliance with notices, an ex-parte order was passed.
Held
The Tribunal condoned the delay in filing the appeal, noting that the assessee was unaware of the ex-parte order due to issues with service. The Tribunal found that the Ld. CIT(A) had passed the order without considering the assessee's submissions and decided to restore the appeal to the Ld. CIT(A) for fresh adjudication.
Key Issues
Whether the Ld. CIT(A) erred in passing an ex-parte order without considering the assessee's submissions and whether the delay in filing the appeal should be condoned.
Sections Cited
147, 53A, 54, 2(47)(v), 282
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “SMC” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
PER OM PRAKASH KANT, AM
This appeal by the assessee is directed against order dated 14.12.2022 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2009-10, raising following grounds:
The learned CIT (Appeals) has erred in law and on the facts of the case in passing an ex-parte order. 2. The learned CIT (Appeals) has erred in law and on the facts of the case in sustaining the order of the assessing officer re-opening the case u/s. 147 of the Income Tax Act. 3. The learned CIT (Appeals) has erred in law and on the facts of the case in not giving a finding whether there was a transfer of capital asset as per the provisions of section 2(47)(v) since the conditions
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as envisaged in section 53A of the Transfer of Property Act were as envisaged in section 53A of the Transfer of Property Act were as envisaged in section 53A of the Transfer of Property Act were not fulfilled. not fulfilled. 4. The learned CIT (Appeals) has erred in law and on the facts of the The learned CIT (Appeals) has erred in law and on the facts of the The learned CIT (Appeals) has erred in law and on the facts of the case in not considering the remand r case in not considering the remand report dated 24 eport dated 24-10-2017 submitted by the assessing officer confirming that construction of submitted by the assessing officer confirming that construction of submitted by the assessing officer confirming that construction of the building has not yet commenced by the developer. the building has not yet commenced by the developer. the building has not yet commenced by the developer. 5. The learned CIT (Appeals) has erred in law and on the facts of the The learned CIT (Appeals) has erred in law and on the facts of the The learned CIT (Appeals) has erred in law and on the facts of the case in not giving the benefit of section 54 o case in not giving the benefit of section 54 of the Income Tax Act. f the Income Tax Act. 6. The assessee craves leave to add, alter or amend the above The assessee craves leave to add, alter or amend the above The assessee craves leave to add, alter or amend the above grounds of appeal. grounds of appeal. 2. Briefly stated, facts of the case are that the assessee filed Briefly stated, facts of the case are that the assessee filed Briefly stated, facts of the case are that the assessee filed return of income on 06.07.2009 declaring total income of return of income on 06.07.2009 declaring total income of return of income on 06.07.2009 declaring total income of Rs.1,46,041/-. Subsequently, the case of the assessee was . Subsequently, the case of the assessee was . Subsequently, the case of the assessee was reopened by way of invoking section 147 of the Income-tax Act, reopened by way of invoking section 147 of the Income reopened by way of invoking section 147 of the Income 1961 (in short ‘the Act’) and the reassessment was completed on the Act’) and the reassessment was completed on the Act’) and the reassessment was completed on 24.03.2015 wherein addition of Rs.33,63,330/ 24.03.2015 wherein addition of Rs.33,63,330/- was made as short was made as short term capital gain on sale of sale of an immovable property.
Before the Ld. CIT(A) though appeal was filed by the assessee Before the Ld. CIT(A) though appeal was filed by the assessee Before the Ld. CIT(A) though appeal was filed by the assessee however no compliance was however no compliance was made of various notices issued in various notices issued in faceless appellate proceedings and therefore, the Ld. CIT(A) passed faceless appellate proceedings and therefore, the Ld. CIT(A) passed faceless appellate proceedings and therefore, the Ld. CIT(A) passed the order ex-parte after analysis of evidence on record. parte after analysis of evidence on record. parte after analysis of evidence on record.
Aggrieved the assessee filed appeal before the Tribunal. Aggrieved the assessee filed appeal before the Tribunal. Aggrieved the assessee filed appeal before the Tribunal.
The appeal of the assessee has b of the assessee has been found to be filed een found to be filed with a delay of 225 days as communicated to the assessee by the Registry delay of 225 days as communicated to the assessee by the delay of 225 days as communicated to the assessee by the vide letter dated 04.01.2024. Before us, the Ld. counsel for the letter dated 04.01.2024. Before us, the Ld. counsel for the letter dated 04.01.2024. Before us, the Ld. counsel for the assessee referred to the affidavit assessee referred to the affidavit filed by the assessee assessee wherein he has submitted that since submitted that since impugned order of the Ld. CIT(A) was order of the Ld. CIT(A) was uploaded on e-portal portal account and was not served either either physically
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or by an e-mail , therefore, the assessee being unaware of the order therefore, the assessee being unaware of the order therefore, the assessee being unaware of the order passed, could not file the appeal could not file the appeal on time and only came to know and only came to know about the impugned o about the impugned order when the Assessing Officer started when the Assessing Officer started pursuing recovery of the outstanding demand. The Ld. counsel pursuing recovery of the outstanding demand. The Ld. counsel pursuing recovery of the outstanding demand. The Ld. counsel submitted that in identical circumstances Co n identical circumstances Co-ordinate Bench of the ordinate Bench of the in the case of Sant Kabir Mahasabha v. CIT(Exemption) Sant Kabir Mahasabha v. CIT(Exemption) Tribunal in the case of ITA No. 84/CHD/2023 dated ITA No. 84/CHD/2023 dated 23.08.2023 condoned the condoned the delay in filing the appeal on the filing the appeal on the plea of the assesee that order was not that order was not served in physical mode or by the e served in physical mode or by the e-mail as per the provisions of mail as per the provisions of section 282 of the Act. section 282 of the Act.
We have heard rival submission We have heard rival submission of the parties the parties. We find that there is a sufficient cause for not filing the appeal by the assessee e is a sufficient cause for not filing the appeal by the assessee e is a sufficient cause for not filing the appeal by the assessee and this being a bona fide mistake and this being a bona fide mistake, we condone the delay in filing the delay in filing the appeal and admit the same for adjudication. Since, the Ld. the appeal and admit the same for adjudication. Since, the Ld. the appeal and admit the same for adjudication. Since, the Ld. CIT(A) has passed the impugned order without taking into CIT(A) has passed the impugned order without taking into CIT(A) has passed the impugned order without taking into consideration submission of the assessee on the grounds raised sideration submission of the assessee on the grounds raised sideration submission of the assessee on the grounds raised ,therefore, in the interest of substantial justice therefore, in the interest of substantial justice, we feel appropriate we feel appropriate to restore the appeal back to the file of the Ld. CI restore the appeal back to the file of the Ld. CIT(A) for deciding T(A) for deciding afresh after taking into consideration submission of the assessee. afresh after taking into consideration submission of afresh after taking into consideration submission of Before us, the Ld. counsel for the assessee has given an Before us, the Ld. counsel for the assessee has given Before us, the Ld. counsel for the assessee has given undertaking that notices issued by the Ld. CIT(A) shall be complied notices issued by the Ld. CIT(A) shall be complied notices issued by the Ld. CIT(A) shall be complied by the assessee. Accordingly, the grounds raised by the assessee by the assessee. Accordingly, the grounds raised by the assessee by the assessee. Accordingly, the grounds raised by the assessee are allowed for statistical purposes. are allowed for statistical purposes.
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In the result, the appeal of the assessee is allowed for ult, the appeal of the assessee is allowed for ult, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on nounced in the open Court on 05/02/2024. /02/2024. Sd/ Sd/- Sd/- Sd/ (KAVITHA RAJAGOPAL KAVITHA RAJAGOPAL) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 05/02/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai
