RAMAKRISHNAIAH,BANGALORE vs. INCOME TAX OFFICER, WARD-1(2)(1), BANGALORE

At the outset, we note that there was a delay in filing the appeal before us for 44 days. The assessee before us has filed the condonation petition supported by the affidavit stating that he has a strong case on merit and therefore if any addition is sustained in the hands in his hand, would cause a genuine hardship. According to the assessee, a meritorious case should not be dismissed on account of technical lapses.

It was further noticed that the assessee has also not appeared either during the assessment or the appellate proceedings despite the fact that several opportunities were extended by the authorities below to the assessee to raise his contentions. It is also pertinent to note that there was also a delay before the ld. CIT-A in filing the appeal by the assessee, but the ld. CIT-A was kind enough to condone the delay in filing the appeal. All these cumulative facts strongly suggest that the assessee was negligent in pursuing the matter before the authorities below.

Be that as it may be the revenue is also at fault in so far by adding the sale consideration of the property on gross basis to the total income of the assessee. It is the trite law that the income of the assessee has to be calculated within the provisions of law. In simple words, even the assessee doesn’t cooperate during the proceedings, then also the revenue does not get the free hands to tax the income according to its whims and fancy. As such, the revenue is under the obligation to determine the total income of the assessee only as per the provisions of law and on scientific basis. The provisions of section 45 mandates to calculate the income under the head capital gain after reducing the cost of acquisition and other cost from the sale consideration. But the revenue in the instant case has treated the gross amount of sale consideration of the property as income under the head capital gain which is contrary to the provisions of law. To our understanding, the revenue could have easily obtained at least the cost of acquisition of the property in dispute from the registrar of the properties, land revenue records or any other competent Government authorities by exercising the powers granted under the statute under the provisions of section 131/ 133(6) of the Act. But the revenue has shifted the entire blame to the assessee by holding that the assessee did not cooperate during the proceedings despite providing ample opportunities. Thus, in such facts . and circumstances, we are of the opinion that meritorious case should not be dismissed merely on technical grounds.

Nevertheless, the ld. AR appearing on behalf of the assessee before us has assured that the assessee shall make the necessary compliance without fail and therefore pleaded for one more opportunity to represent the case before the AO. On the other hand, the learned DR contended that the assessee has been negligent persistently and therefore no further opportunity should be granted to him. The learned DR vehemently supported the order of the authorities below.

After hearing both the sides and considering the details and the facts available on record, we are of the view that the assessee deserves one more opportunity to represent his case before the AO in the given facts and circumstances, and accordingly we set aside the file at the level of the AO for fresh adjudication as per the provisions of law. The assessee is also directed to cooperate during the assessment proceedings, furnish the necessary details in support of his claim and not to seek any other adjournment without just cause. Hence, the appeal of the assessee is hereby allowed for the statistical purposes.