SHAMSHER ALI,JAIPUR vs. ITO WD 3(1), JAIPUR

ORDER PER: SANDEEP GOSAIN, JM Both these appeals filed by the assessee are directed against two different orders of the ld. CIT(A) 30-10-2021 and dated 24-09-2021, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2008-09 in the matter of u/s 271(1)(c) and 144/147 of the Act. 2.1 The grounds of appeal raised by the assessee in the above mentioned appeals are as under:-

ITA NO. 39/JP/2022 AY 2008-09 U/S 271(1)© of th eAct ‘’Under the facts and circumstances of the case, ld. CIT(A) has grossly erred in confirming the penalty proportionate to the addition confirmed by the ld. CIT(A) in original assessment which is not sustainable and needs to be deleted.’’ AY 2008-09 U/S 143(3) r.w.s.147/144 of the Act ‘’Under the facts and circumstances of the case, the ld. CIT(A) has grossly erred in confirming the addition made by the AO to the extent of Rs.8,07,152/- under the head long term capital gain without appreciating the facts and merely on the basis of surmise and suspicious.’’ 2.2 First of all, the Bench takes up the appeal of the assessee in ITA No.39/JP/2022 for adjudication. None appeared on behalf of the assessee at the time of hearing. However, an application for adjournment of the case has been placed on record mentioning therein that due to pre-occupation, it is not possible for the counsel to appear before the Court. The Bench noted that this is not a sufficient ground for seeking adjournment by the counsel of the assessee. Hence, the Bench rejected the adjournment application of the ld. Counsel of the assessee vide its order dated 25-08-2022. 2.3 On the other hand, the ld. DR submits that she is ready for arguments. 2.4 In this view of the matter, the Bench decided to hear the case of the assessee ex-parte.

3 SHAMSHER ALI VS ITO, WARD 3(1), JAIPUR 2.5 During the course of hearing, the Bench further noted that there is a delay of 21 days in filing the appeal by the assessee for which the ld. AR of the assessee filed an application for condonation of delay and simultaneously the assessee filed an affidavit to the effect that he had e-filed an appeal on 4-01-22 i.e. within the time period but mistakenly the documents concerning the appeal were filed on 28- 01-2022 in the office of ITAT. Thus the ld. AR of the assessee prayed for condonation of delay in filing the documents in the office of ITAT. However, the same was opposed by the ld. DR. The Bench taking into consideration the above facts and circumstances of the case of the assessee took a lenient view that the assessee is prevented by sufficient cause in late filing the concerning documents of the appeal; however, the appeal was filed within the time period. We are of the view that the appeal should be filed by the assessee within prescribed time with all the necessary enclosures/documents which is mandatory. Therefore, in this view of the matter, the delay in late filing the documents concerning the appeal is condoned. 2.6 Now the Bench comes to the merit of the case. The Bench heard the ld. DR and considered the documents filed by the assessee concerning the issue in question. In this case, it is noted that the AO during the penalty proceedings gave various opportunities to the assessee but the assessee chose not to comply with the notices and therefore, the AO levied penalty u/s 271(1)© of the Act for 4 SHAMSHER ALI VS ITO, WARD 3(1), JAIPUR Rs.3,42,913/- vide order dated 25-08-2016. However, in first appeal, the ld. CIT(A) partly allowed this ground of appeal by observing as under:- ‘’6.9 As the substantial addition has been reduced from Rs.13,29,652/- to Rs.8,07,152/- in a separate appellate proceedings (Appeal No.), the AO is directed to recalculate the tax sought to be evaded and recompute the penalty u/s 271(1)( c) accordingly. Ground NO. 1 of the appeal is thus partly allowed.’’ The ld. DR relied on the order of the ld. CIT(A). However, the Bench during the course of hearing did not find any controverting reply from the side of the assessee. In this view of the matter, the order of the ld. CIT(A) is sustained. Thus the appeal of the assessee is dismissed. 3.1 In the appeal of the assessee in ITA No. 318/JP/2021, the facts as emerges from the order of the ld. CIT(A) are as under:- ‘’6.6 On perusal of the submission, it is seen that the appellant purchased a land on 19-09-2001 for a total consideration of Rs.2,50,000/- and claimed to incur expenditure of Rs.10,00,000/- for construction of house. Though the sale deed mentions that a house was sold, however, no supporting evidence was filed to prove that the appellant incurred expenditure of Rs.10,00,000/-. However, construction of a house will require some amount of money, therefore benefit of Rs.2,00,000/- is given to the appellant for construction of house. Further, the appellant has not furnished any documents to show that an amount of Rs.26,500/- was incurred as brokerage and also that an amount of Rs.52,868/- was incurred for JDA patta, if any. 6.7 Further, the appellant has not submitted proof regarding year of construction. Merely stating that the house constructed does

5. ITA NO. 39/JP/2022 SHAMSHER ALI VS ITO, WARD 3(1), JAIPUR not suffice, therefore, benefit of indexation will not be given to the appellant. In view of the above, long term capital gain in above transaction is as calculated as below:- Sale Price of the land Rs.13,29,652/- Less Brokerage Rs. Nil Net Consideration Rs.13,29,652/- Less: Cost of acquisition in 1001 (Rs.2,50,000/-) Indexed cost of acquisition -Rs.3,22,500/- JDA Patta - Rs. Nil Cost of construction -Rs.2,00,000/- Rs.5,22,500/- Long Term Capital Gain Rs.8,07,152/- 6.8 In view of the above, Ground No. 1 of the appeal is partly allowed and addition is reduced from Rs.13,29,652/- to Rs.8,07,152/-‘’ 3.2 In this appeal, it is noted that there is delay of 27 days in filing the appeal by the assessee. It is not imperative to repeat the same story as made by the assessee in the appeal No.39/JP/2022 wherein the delay in filing the appeal by the assessee has been condoned by the Bench. Similar view is also taken to condone the delay in this case also. 3.3 None appeared on behalf of the assessee. The ld. DR relied on the order of the ld. CIT(A). The facts as mentioned in appeal No. 39/JP/2022 are same for non- appearance of ld. Counsel of the assessee. However, the Bench during the course of hearing did not find any controverting reply from the side of the assessee. In this view of the matter, the order of the ld. CIT(A) is sustained. Thus the appeal of the assessee is dismissed.

Order pronounced in the open court on 15 /09/2022

Sd/- ¼lanhi xkslkbZ½ (Sandeep Gosain) U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 15/09/2022 *Mishra आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू The Appellant- Shri Shamsher Ali, Jaipur 1. 2. izR;FkhZ@ The Respondent- ITO, Ward 3 (1) & 3(4), Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 39 /JP/2022 and 318/JP/2021) vkns'kkuqlkj@ By order,