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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI VIJAY PAL RAO & SHRI B.M. BIYANI
आदेश / O R D E R
Per B.M. Biyani, A.M.:
Feeling aggrieved by appeal-order dated 10.01.2024 passed by learned Commissioner of Income-Tax (Appeals)-NFAC, Delhi [“CIT(A)”] which in turn arises out of assessment-order dated 30.11.2019 passed by learned ITO, 3(3), Bhopal [“AO”] u/s 144 r.w.s. 147 of Income-tax Act, 1961 [“the Act”] for Assessment-Year [“AY”] 2012-13, the assessee has filed this appeal on the grounds as mentioned in Appeal Memo (Form No. 36).
Page 1 of 6 days and therefore time-barred. Ld. AR for assessee submitted that the assessee has filed a condonation-application. Referring to assessee’s condonation-application and further documents filed by Ld. AR in a Written- Submission dated 2nd August, 2024, Ld. AR explained (i) that the CIT(A) has passed impugned order ex-parte assessee because of non-participation by assessee but the notices of hearing of first-appeal were sent by CIT(A) to a different email id than the email id specified by assessee in Column 17 of Form No. 35 and the assessee could not access the email id to which the notices were sent; hence the notices did not reach to assessee’s knowledge and there occurred non-participation; and (ii) that the order of CIT(A) was also not sent to the email id specified by assessee therefore the impugned order could come to the knowledge of assessee lately and the assessee sought legal advice and opinion from different professionals for further course of action, these factors took more time and resulted in a small delay of 13 days in filing next appeal to ITAT. Ld. AR went further to explain that in present case, an addition of Rs. 51,11,600/- made by AO on account of undisclosed capital gain is the issue of dispute but as would be seen in subsequent discussions that the AO’s addition is apparently against the provision of law. Therefore, the case of assessee, has a strong merit. Ld. AR very humbly submitted that there is no deliberate lethargy, negligence, mala fide intention or ulterior motive of assessee in making delay and the assessee does not stand to derive any benefit because of delay. He prayed
Page 2 of 6 delay should be condoned and the appeal be admitted and heard. Ld. DR for Revenue left the matter to the wisdom of Bench without making any objection. We have considered the explanation advanced by assessee and in absence of any contrary fact or material on record, the assessee is found to have a sufficient cause for delay in filing present appeal. We find that section 253(5) of the Act empowers the ITAT to admit an appeal after expiry of prescribed time, if there is a sufficient cause for not presenting appeal within prescribed time. It is also a settled position by Hon’ble Supreme Court in Collector, Land Acquisition Vs Mst. Katiji and others 1987 AIR 1353, 1987 2 SCC 387 that whenever substantial justice and technical considerations are opposed to each other, the cause of substantial justice must be preferred by adopting a justice-oriented approach. Thus, taking into account the provision of section 253(5), the merit of case and the decision of Hon’ble Supreme Court, we take a judicious view, condone delay, admit appeal and proceed with hearing.
The background facts leading to present appeal are such that the assessee-individual filed original return of income of AY 2012-13 on 23.12.2013 u/s 139 declaring a total income of Rs. 2,22,750/-.
Subsequently, on the basis of an AIR information received in AO’s office regarding sale of immovable property by assessee amounting to Rs. 51,11,600/- during financial year 2011-12 relevant to AY 2012-13, the AO
The AO thereafter issued notices u/s 142(1) which remained un- complied by assessee. Then, the AO issued notice u/s 144 making a proposal of best judgement assessment which also remained un-complied by assessee. Ultimately, the AO completed ex-parte assessment vide order dated 30.11.2019 u/s 144 after making an addition of Rs. 51,11,600/- on account of undisclosed capital gain equivalent to the value adopted by Stamps Authority. Aggrieved, the assessee carried matter in first-appeal but could not participate in the hearings fixed by CIT(A). Therefore, the CIT(A) also passed ex-parte order based on available material and upheld the addition made by AO. Still aggrieved, the assessee has come in next appeal before us.
Ld. AR submitted that the case of assessee is very specific, narrow and precise. The AO has, on the basis of AIR information received from Registrar of Stamps, made an addition of Rs. 51,11,600/- on account of undisclosed ‘taxable capital gain’ from sale of immovable property whereas there was no sale transaction done by assessee. The assessee only donated/gifted property to a charitable/religious body named “Iswar Prem Mission” without any consideration for construction of a temple. The transaction so done by assessee is clearly excluded from ‘transfer’ u/s 47(iii) of the Act and hence does not give rise to any taxable income under the provisions of Act. Ld. AR submitted that the AO has, however, adopted the value of Rs. 51,11,600/- fixed by Stamps Authority for levy of stamps duty and assessed capital gain at Rs. 51,11,600/-. Ld. AR submitted that the Page 4 of 6 assessee has filed (i) copy of registered donation-deed dated 03.02.2012 executed by assessee, and (ii) copy of a power of attorney dated 09.02.2011 executed by owners of immovable property in favour of assessee. These documents are filed as additional evidences under Rule 29 read with Rule 18(4) of ITAT Rules, 1963. Ld. AR submitted that these evidences are part of statutory documents registered with the Office of Sub-Registrar and on the basis of these evidences, it can be safely found and concluded that the transaction done by assessee was in the nature of donation/gift and therefore not taxable u/s 47(iii). Accordingly, Ld. AR prayed, to delete the addition made by AO having regard to evidences on record. Per contra, Ld. DR for revenue requested that the assessee has not made any submission before lower-authorities and the evidences now brought are for the first time before ITAT. Therefore, in all fairness, the matter should go back to AO for factual examination of evidences and thereafter taking an appropriate view in the matter. He submitted that the bench may give suitable directions to AO and assessee in the matter.
We have considered submissions of both sides and perused the case- record including orders of lower-authorities and the additional evidences filed before us. Admittedly, the AO initiated action on the basis of information available in AIR qua a transaction of sale of property made by assessee and during assessment-proceeding the AO has given opportunities to assessee to explain such transaction but the assessee did not avail those opportunities which has only led the AO to pass ex-parte order making impugned addition. It is a further point that the order of CIT(A) is also ex- parte due to non-presentation by assessee. The assessee has now filed evidences to assail the capital gain assessed by assessee. Although there appears a prima facie strength in the claim of assessee that the transaction
Page 5 of 6 done by assessee was in the nature of giving ‘donation/gift’ and not of ‘sale’ as considered by AO and therefore capital gain is not taxable u/s 47(iii), yet it is also necessary that the evidences filed by assessee must be verified by AO for arriving at a proper satisfaction in the matter. Therefore, we find a strong merit in the request of Ld. DR for revenue that this case must be restored to AO for factual examination of evidences now filed and adjudication afresh. We therefore accede to the request of Ld. DR and remand this matter to AO. Needless to mention that the AO shall give necessary opportunity to assessee and the assessee shall also avail those opportunities. Ordered accordingly.
Resultantly, this appeal is allowed for statistical purpose.
Order pronounced in open court on 09.09.2024.