LALY CHIRAKANDATHIL GEORGE,KOCHI vs. THE ACIT, KOCHI
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Income Tax Appellate Tribunal, COCHIN BENCH, COCHIN
Before: SHRI SANJAY ARORA, AM & MS. KAVITHA RAJAGOPAL, JM
IN THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN
BEFORE SHRI SANJAY ARORA, AM AND MS. KAVITHA RAJAGOPAL, JM ITA No.73/Coch/2022 (Assessment Year: 2011-12)
Laly Chirakandathil George The ACIT Corp. Circle 1(2) Kattarukudiyil, RMV Road, Kochi Vs. Elamakara, Kochi-26
PAN/GIR No. AFCPG 8832 K (Assessee) : (Respondent)
Assessee by : Shri Mathew Joseph Respondent by : Smt. J M Jamuna Devi
Date of Hearing : 06.03.2024 Date of Pronouncement : 05.06.2024
O R D E R Per Kavitha Rajagopal, J M:
This appeal has been filed by the assessee, challenging the order of the learned
Commissioner of Income Tax (Appeals) (‘ld.CIT(A) for short), National Faceless Appeal
Centre (‘NFAC’ for short) passed u/s.250 of the Income Tax Act, 1961 (‘the Act'),
pertaining to the Assessment Year (‘A.Y.’ for short) 2011-12.
The assessee has challenged the intimation passed u/s. 143(1) of the Act by the
learned Assessing Officer (ld. A.O. for short)/CPC in disallowing the set off of short term
capital loss (STCL for short) amounting to Rs.18,76,000/- against the long term capital
gain (LTCG for short).
The brief facts are that the assessee is an individual and had filed her return of
income dated 12.02.2013 declaring total income at Rs.29,18,400/- and the same was
2 ITA No. 73/Coch/2022 (A.Y. 2011-12) Laly Chirakandathil George vs. The ACIT Corp. Circle1(2) processed u/s. 143(1) of the Act. The ld. A.O./CPC vide intimation dated 02.09.2013 u/s.
143(1)(a) of the Act disallowed the set off of short term capital loss against the LTCG
thereby determining the total income at Rs.29,18,400/-.
The assessee was in appeal before the first appellate authority on 11.03.2019,
challenging the impugned intimation.
The ld. CIT(A) vide order dated 23.12.2021 had dismissed the appeal filed by the
assessee for the reason that there has been a delay of 5 years and 157 days in filing the
appeal before the first appellate authority and for which the assessee has not given
‘sufficient cause’ for the said delay.
Further aggrieved the assessee is in appeal before us, challenging the orders of the
lower authorities.
We have heard the rival submissions and perused the materials available on
record. It is observed that the assessee had filed her return of income for the impugned
year on 12.02.2013 u/s. 139(4) of the Act, declaring total income at Rs.10,42,400/-. The
assessee in her written submission had stated that she had incurred the STCL on transfer
of property of Compara amounting to Rs.18,76,000/- which was claimed to be set off
against LTCG of Kothamangalam property amounting to Rs.22,47,759/- u/s.74(1)(a) of
the Act. The assessee has further stated that after set off she had declared a sum of
Rs.3,71,159/- under the head ‘capital gains (long term)’, thereby declaring total income at
Rs.10,42,400/-. The assessee contended that the intimation u/s. 143(1) of the Act, the
3 ITA No. 73/Coch/2022 (A.Y. 2011-12) Laly Chirakandathil George vs. The ACIT Corp. Circle1(2) CPC has erroneously determined total income at Rs.29,18,400/- after disallowing the
claim made by the assessee u/s. 74(1)(a) of the Act.
In the above factual matrix of the case, we notice that the assessee has filed the
first appeal before the ld. CIT(A) with a delay of more than five years for which the
assessee has reasoned that she was on a bona fide belief that the mistake committed by ld.
A.O/CPC will be suo moto corrected and only after receiving the demand notice dated
26.10.2018 for a demand of Rs.6,65,380/- she was aware of the said proceeding. The ld.
CIT(A) had denied to condone the inordinate delay on the part of the assessee in filing
the appeal before the first appellate authority and had proceeded to dismiss the appeal on
this ground without getting into the merits of the case.
Before us, the assessee has challenged only the intimation passed by the CPC and
rather had not challenged the order of the ld. CIT(A). As the ld. CIT(A) has not decided
the issue on the merits of the case, we refrain to decide the same without there being a
finding on the merits. Even before us, the assessee has neither raised a ground
challenging the order of the ld. CIT(A) in refusing for such condonation nor has she
substantiated the delay of more than five years in filing the first appeal with ‘sufficient
cause’. Intimation u/s. 143(1)(a) of the Act is itself a notice of demand and further there
was nothing to suggest that the said intimation dated 02.09.2013 was not received by the
assessee in due course. The letter dated 26.10.2018 was a reminder for the payment of
outstanding demand. There is no explanation for the delay after 26.10.2018 as well. As
we are aware of the legal maxim that “Ignorantia Juris Non Excusat” means
4 ITA No. 73/Coch/2022 (A.Y. 2011-12) Laly Chirakandathil George vs. The ACIT Corp. Circle1(2) that ignorance of the law is no excuse, we find no infirmity in the order of the ld. CIT(A).
We, therefore, are inclined to dismiss the appeal filed by the assessee.
In the result, the appeal filed by the assessee is dismissed.
Order pronounced on 05.06.2024 under rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963.
Sd/- Sd/-
(Sanjay Arora) (Kavitha Rajagopal) Accountant Member Judicial Member Mumbai; Dated : 05.06.2024 Roshani, Sr. PS
Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT - concerned 4. DR, ITAT, Cochin 5. Guard File BY ORDER,
(Dy./Asstt. Registrar) ITAT, Cochin
