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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
This appeal by the assesse is directed against the order dated 05.09.2023 of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centers,(NFAC) Delhi for A.Y.2009-2010.
There is a delay of 107 days in filing the present appeal. The assessee has filed an application for condonation of delay which is supported by the affidavit of the assessee. The Ld. AR of the assessee has submitted that during the pendency of the Kamlesh Purohit assessment proceedings the assessee expired and the legal heir of the assessee then filed an appeal before CIT(A) however, the impugned order was not received by the legal heir in any mode of postal or e-mail. Only when the son of the assessee logged in the Income Tax Department portal of the deceased assessee came to know about the impugned order on or around 04.02.2024. He has immediately took steps to file the appeal before this Tribunal however, the limitation for filing the appeal was already expired and therefore, there is a delay of 107 days in filing the appeal. Ld. AR further submitted that the assessee belongs to a small village and the impugned order was not in the knowledge of the assessee or his legal heirs before 04.02.2024 hence, he has pleaded that the delay of 107 days in filing the present appeal be condoned and the appeal of the assessee be admitted for adjudication on merits. On the other hand Ld. DR has not objected to the condonation of the delay.
Having considered the submissions of the Ld. AR and careful perusal of the reasons explained in the application for condonation of delay, we find that the assessee belongs to a rural area and has explained the reasons for delay of 107 days in filing the present appeal as the impugned order was not in the knowledge of the legal heirs of the assessee till 04.02.2024 when he logged in the account of the deceased assessee on the portal e-filing portal of the department. Accordingly we are satisfied that the assessee had sufficient reasons for delay of 107 days and the same is condoned.
The assesse has raised following grounds of appeal:
“1.That in the facts and circumstances of the case and in law, the Id.CIT(A) has erred in confirming the order of Id.ITO-1, Ratlam, who computed the capital gains on sale of agricultural land without deducting the indexed cost of acquisition and the cost of construction of house from the sale proceeds of the said agricultural land and has failed to appreciate the documents filed by the legal heir vide letter dated 23.01.2018.
2. That the order of the Id.CIT(A) is bad in law and needs to be set aside.
3. That the appellant prays leave to modify/edit/add any ground of appeal before its final disposal”.
The Ld. AR has submitted that the Assessing Officer has passed an ex-parte order u/s 144 r.w.s. 147 of the Income Tax Act and thereby made an addition of Rs. 35,81,000/- on account of Long Term Capital Gain on sale of agriculture land. He has further submitted that the Assessing Officer has even not allowed the index cost of acquisition of the said land and cost of construction of the house from the sale proceeds of the agriculture land and therefore, making the addition of entire sale consideration by the A.O is highly arbitrary and unjustified. He has further submitted that the CIT(A) has confirmed the addition by rejecting the explanation and contention of the assessee that the asset in question was an agricultural land for want of proof of agriculture land. Ld. AR has submitted that CIT(A) has not confronted the assessee about the deficiency or shortcoming of the evidence in support of the claim of the agriculture land sold by the deceased assessee. Thus he has pleaded that the assessee be given one more opportunity to produce all the relevant documentary evidence in support of the claim of the Kamlesh Purohit agriculture land. He has pointed out that since the assessment order was passed ex-parte and CIT(A) confirmed the addition for want of the supporting evidence therefore, the matter may be remanded to the record of the A.O for fresh adjudication after considering the supporting evidence to be filed by the assessee. He has further clarified that though all the documents were produced before the authorities below however, neither the A.O nor CIT(A) has considered the supporting evidence filed by the assessee. On the other hand Ld. DR has raised no objection if the matter is remanded to the record of the A.O for fresh adjudication after verification and consideration of the relevant supporting evidences in support of the claim of agriculture land.
We have considered the rival submissions and carefully perused the orders of the authorities below. The A.O has made the addition of entire sale consideration by citing the reasons that sufficient opportunity were given to the assessee but there was no appearance on behalf of the assessee as well as no written compliance/submissions were filed. The A.O has also stated that the assessment order was going to be time barred and therefore, there was no other way but to pass ex-parte order. CIT(A) has confirmed the addition made by the A.O in para 5 and 5.1 as under:
“5. Decision: In this case, the addition has been made by the Assessing Officer worth Rs. 35,81,000/- u/s 144 of the Income Tax Act, 1961. The appellant has sold two immovable property valued at Rs. 35,81,000/- but did not file Return of Income and did not show capital gain. Hence, the Assessing Officer made the addition.
Kamlesh Purohit 5.1 Now before me in the appellate proceedings, written submission has been filed. I have gone through the written submission. It has been stated that the father of the appellant has sold the land and he has expired. It has been further stated that this is an agricultural land. Copies of agreement, proof of agricultural land have not been filed. Hence the contention of the appellant cannot be accepted in absence of any proof. Bank statement and cash book have also not been submitted. Hence the addition of the Assessing Officer is confirmed and the appeal of the appeal is dismissed”.
Thus the only reason given by the CIT(A) is that the contention of the assessee could not be accepted in the absence of any proof viz, copies of agreement, proof of agriculture land and bank statement etc. The CIT(A) has also reproduced the submissions of the assessee in para 4 of the impugned order wherein the assessee explained that the deceased father sold 6.51 hectares of agriculture land which was purchased in the year 1967. The assessee has also submitted that out of the sale proceeds he has constructed a house at village Karamdi and produced NOC dated 20.08.2008 issued by the Gram Panchayat, Karamdi. The assessee has also referred to other supporting evidences viz affidavit of the building contractor, certificate of the engineer who certified the cost of construction etc. However, all these evidences were neither discussed by the A.O nor by the CIT(A). Accordingly in the facts and circumstances of the case we set aside the impugned order of CIT(A) and remand the matter to the record of the jurisdictional A.O for fresh adjudication after considering all the supporting evidences filed by the assessee. Needless to say the assessee be given an appropriate opportunity of hearing before passing the fresh order.
In the result appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 04.07.2024.