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Income Tax Appellate Tribunal, VISAKHAPATNAM BENCH, VISAKHAPATNAM
Before: SHRI DUVVURU RL REDDY, HON’BLE & SHRI S BALAKRISHNAN, HON’BLE
PER DUVVURU RL REDDY, Judicial Member :
This appeal filed by the assessee is against the order of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [“Ld. CIT(A)-NFAC”] in DIN & Order No. ITBA/NFAC/S/250/2023-24/1058696082(1), dated 12/12/2023 arising out of the order passed U/s. 144 of the Income Tax Act, 1961 [“the Act”] for the AY 2012-13.
2 2. At the outset, it is noticed that there is a delay of 108 days in filing this appeal before the Tribunal. With respect to belated filing of the appeal, the assessee filed petition for condonation of delay along with the affidavit and the relevant paras of the affidavit is extracted herein below for reference: “……. ……. Aggrieved with the order of assessment, she filed an appeal before the Hon’ble CIT (Appeals), NFAC and the said appeal was dismissed vide order in ITBA/NFAC/S/250/2023-24/ 1058696082(1) dated 12.12.2023. The "appellant carried the matter further in appeal before the Hon’ble ITAT. ‘The appeal before the Hon’ble ITAT, Visakhapatnam Bench was filed on 28.05.24 with a delay of 108 days. In this regard the appellant humbly submits that She was suffering from Abnormal Uterine Bleeding since December, 2023. She also underwent Hysterscopy Guided Enometrial Biopsy on 3.4.2024 with Blossoms Mother & Child Hospital. She was under regular monitory and treatment from 1.12.2023 onwards till 20.5.2024. A copy of the Medical Certificate issued by the said Hospital is annexed. Her Chartered Accountant is stationed in Guntur. Therefore, she was not in a position to undertake journey during the said period. When she recovered from the medical problems, she consulted the Chartered Accountant in person on 26.5.2024. The said Chartered Accountant " in turn entrusted the matter to an Advocate who is stationed in Hyderabad on 27.5.2024. The appeal was got prepared and filed before the Hon’ble ITAT on 28.5.2024 with a delay of 108 days. The appellant humbly submits that the delay is on account of ill- health problems and medical treatment of the assessee and is not intentional. The appellant submits that she does not stand to benefit by resorting to delay in filing the appeal. In view of the above, the appellant prays the Hon’ble ITAT to kindly condone the delay, admit the appeal and pass appropriate orders granting relief as prayed for.”
On perusal of the explanation given by the assessee with respect to filing of the appeal before the Tribunal beyond the prescribed time limit, we find that the assessee was prevented by a reasonable and sufficient cause to file the appeal within the 3 stipulated time. Therefore, we hereby condone the delay of 108 days in filing the appeal of the assessee before the Tribunal and proceed to adjudicate the appeal on merits.
Briefly stated the facts of the case are that the assessee is an individual did not file her return of income for the AY 2012- 13. During the assessment proceedings, the Ld. AO observed that during the AY under consideration, the transaction affected by the assessee under Doc No. 4408/2011 as a financial transaction for and on behalf of the assessee. The Ld. AO also observed that as transpired by the regular conveyance deed bearing Regd. No. 4408, dated 25/07/2011 cited above, there is a variation in the market value recorded therein and the purchase cost of Rs. 8,72,000/- as reflected in the agreement of sale dated 7/4/2005 and therefore, the Ld. AO observed that the said financial transaction clearly attracted LTCG which was not disclosed by the assessee earlier in proper perspective. The Ld. AO also observed that the market value of the property was identified by the SRO at Rs. 63,89,000/-. Thus, based on the information available on record, the case of the assessee was reopened by issuing a notice U/s. 148 of the Act dated 29/03/2019 after approval of the Ld. Pr. CIT, Vijayawada. Subsequently, the 4 assessee was asked to file the return of income for the AY 2012- 13. In response, the assessee replied that she has no income which is above the exemption limit and hence the assessee did not file the return of income. Thereafter, the Ld. AO completed the assessment U/s. 144 r.w.s 147 of the Act on 17/12/2019 wherein the assessed income was determined at Rs. 56,42,903/- which includes addition of Rs. 54,72,903/- under long term capital gains U/s. 50C of the Act. Aggrieved by the order of the Ld. AO, the assessee filed an appeal before the Ld. CIT(A)-NFAC.
On appeal, since there was no response from the assessee to the hearing notices issued with regard to the assessee’s appeal, the Ld. CIT(A)-NFAC passed ex-parte order and dismissed the appeal of the assessee. Aggrieved by the order of the Ld. CIT(A)- NFAC, the assessee is in appeal before the Tribunal by raising the following grounds of appeal:
“1. The order of the Ld. CIT(A)-NFAC is erroneous both on facts and in law. 2. The Ld. CIT(A)-NFAC has erred in deciding the appeal ex-parte without providing proper opportunity. 3. The Ld.CIT(A)-NFAC ought to have adjudicated the grounds of appeal in the memorandum of appeal, which is mandatory.
5 4. The Ld. CIT(A)-NFAC ought to have set aside / quashed the impugned assessment order as void since it was issued without DIN.
The Ld. CIT(A)-NFAC ought to have considered the fact that there was no sale of property by the appellant assessee since the sale deed was executed by the original owners and therefore there could be no transfer of property in the hands of the appellant-assessee.
6. The Ld. CIT(A)-NFAC ought to have seen that the Assessing Officer erred in holding the transaction by GPA holders as “Transfer”.
The Ld. CIT(A)-NFAC ought to have seen that the Assessing Officer wrongly applied provisions of section 50C when there was no transfer in the hands of the appellant-assessee. 8. any other ground(s) raised at the time of hearing with the leave of the Hon’ble Tribunal.”
At the outset, the Ld. Authorized Representative [“Ld. AR”] submitted before us that the Ld. CIT (A)-NFAC has passed ex-parte order without providing proper opportunity to the assessee of being heard. It was therefore pleaded that the matter may be remitted back to the file of the Ld CIT (A)-NFAC in order to provide one more opportunity to the assessee of being heard.
Ld. Departmental Representative [“Ld. DR”], on the other hand, vehemently opposed to the submissions of the Ld. AR and argued that several opportunities had been provided to the assessee however, on the 6 given dates of hearing, neither the assessee nor her Representative has responded to the notices issued nor filed any details / submissions as called for by the Ld. CIT (A)-NFAC. It was further submitted that, under these circumstances, the Ld. CIT (A)-NFAC had no other option but to pass ex-parte order based on the materials available on record. Hence, it was pleaded that the order passed by the Ld. CIT(A)-NFAC does not call for any interference.
5. We have heard the both the sides and carefully perused the materials on record. On examining the facts of the case, we find that the Ld. CIT (A)-NFAC had posted the case on several occasions. However, there was no response on behalf of the assessee before the CIT(A)-NFAC on the dates of hearing with regard to the details / submissions as called for by the Ld. CIT(A)-NFAC. Therefore, the Ld. CIT (A)-NAFC was left with no other option except to adjudicate the appeal ex-parte and dismissed appeal in-limine. In this situation, considering the issues involved in the appeal, we are of the considered view that the Ld. CIT(A)-NFAC ought to have decided the case on merits instead of dismissing the appeal in- limine. However, considering the prayer of the Ld. AR, and in the interest of justice as well as strictly following the principles of natural justice, we hereby remit the matter back to the file of Ld. CIT (A)-NFAC in order to consider the appeal afresh and decide the case on merits by providing
7 one more opportunity to the assessee of being heard in accordance with the principles of natural justice. At the same breath, we also hereby caution the assessee to promptly co-operate before the Ld. CIT (A)-NFAC in the proceedings failing which the Ld. CIT (A)-NFAC shall be at liberty to pass appropriate order in accordance with law and merits based on the materials on the record. It is ordered accordingly.
In the result, appeal filed by the assessee is allowed for statistical purposes as indicated hereinabove.
Pronounced in the open Court on 14th August, 2024.
Sd/- Sd/- (एस बालाकृ�णन) (दु�वू� आर.एल रे�ी) (S.BALAKRISHNAN) (DUVVURU RL REDDY) लेखा सद�य/ACCOUNTANT MEMBER �याियकसद�य/JUDICIAL MEMBER Dated :14/08/2024 OKK - SPS आदेश की �ितिलिप अ�ेिषत /Copy of the order forwarded to:- 1. िनधा�रती/ The Assessee – Narra Ganga Devi, 59a-8/10-9/1, Maruthi Courier Operative Colony, Plot No. 131, Road No.6, Patamata, Vijayawada, Andhra Pradesh – 520008. 2. राज�व/The Revenue – Income Tax Officer, Ward-2(3), Vijayawada, Andhra Pradesh.
3. The Principal Commissioner of Income Tax, 4.आयकर आयु� (अपील)/ The Commissioner of Income Tax (Appeals), 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, िवशाखापटणम/ DR, ITAT, Visakhapatnam