MR. ROSHAN A KUDALKAR THROUGH LEGAL HEIR MR. SWAROOP R KUDALKAR,KHED, RATNAGIRI vs. ITO, WARD-3, RATNAGIRI, RATNAGIRI

ORDER PER BENCH : This is an appeal filed by the assessee against the order of ld.Commissioner of Income Tax(Appeals)[NFAC] for Assessment Year 2011-12 dated 19.08.2024 passed u/sec.250 of the Income tax Act, 1961. The Assessee has raised the following grounds of appeal : “1. On facts and circumstances prevalling in the case and as per provisions and scheme of the Act it be held that Ld. CIT(A)-NFAC erred in dismissing the appeal without intimating about his intention to dismiss appeal for delay of 7 days in filing form

35. Accordingly, the order so passed by Ld. CIT(A)-NFAC be kindly quashed and Ld. CIT(A)-NFAC be kindly directed to condone the delay and allow the Appellant to file it submission on merits and legality. Accordingly, Appellant be granted just and proper relief in this respect.

2. On facts and circumstances prevalling in the case and as per provisions and scheme of the Act it be held that Ld. CIT(A)-NFAC erred in passing the order without perusing the submissions filed before him and also before Ld. CIT(A)- 2 Kolhapur. Accordingly, the additions so upheld by Ld. CIT(A) be kindly deleted and appellant be granted just and proper relief in this respect.

3. Without prejudice to other grounds, on facts and circumstances prevailing in the case and as per provisions and scheme of the Act it be held that Ld. CIT(A)-NFAC erred in passing the order without providing copy of remand report on additional evidences filed before Ld. CIT(A)-2, Kolhapur. Accordingly, the addition so upheld be kindly deleted and Appellant be granted just and proper relief in this respect.

4. Without prejudice to other grounds, on facts and circumstances prevailing in the case and as per provisions and scheme of the Act it be held that the addition of Rs.45,50,000/- so made by Ld. AO and that upheld by Ld. CIT(A)- NFAC is incorrect since entire sale consideration is taxed in the hands of Appellant even there being other two joint owners and also without considering indexed cost of acquisition. Accordingly, the addition so made be kindly deleted and the Appellant be granted Just and proper relief in this respect.

5. Without prejudice to other grounds, on facts and circumstances prevalling in the case and as per provisions and scheme of the Act it be held that the assessment proceedings initiated by Ld. AO are not in accordance with the provisions of Act in relation to re-assessment proceedings. Thus, the assessment proceedings so initiated u/s 147 of the Act be kindly quashed and Appellant be kindly given appropriate relief in this regard.

6. Without prejudice to other grounds, on facts and circumstances prevailing in the case and as per provisions and scheme of the Act it be held that the interest computed u/s 243A, B and C of the Act be kindly deleted since the same is dependent on the incorrect and invalid additions so made by Ld. AO and that upheld by Ld. CIT(A).

2 Accordingly, the Appellant be kindly given appropriate relief in this regard. 7. The appellant prays to be allowed to add, amend, modify, rectify, delete, raise any grounds of appeal at the time of hearing.” Submission of ld.AR :

2. Ld.AR for the Assessee filed a paper book. Ld.AR submitted that in this case, there was no taxable income for the assessee, hence assessee did not file Return of Income. The Assessing Officer(AO) had issued a notice u/s.148 of the Act, dated 27.03.2017. However, assessee could not file any details due to his illness. Subsequently, assessee died on 07.03.2021. Assessee filed an appeal before the ld.CIT(A)-2, Kolhapur alongwith additional evidence. Ld.CIT(A)-2, Kolhapur called-for a Remand Report from the Assessing Officer. Ld.AR invited our attention to Page 3 of the paper book which was a notice issued by ITO, Ward- 3, Ratnagiri on 23.11.2019 to the Assessee titled “Remand Report u/s.250(4) of the Act”. Ld.AR submitted that after receiving the notice from ITO, the Assessee made an elaborate submission before the ITO vide letter dated 10.12.2019 which is at Page 4 of the paper book.

3 2.1 Ld.AR submitted that however ld.CIT(A)[NFAC] has not considered these facts, and dismissed the appeal of the assessee on account of delay as there was delay of 07 days in filing of appeal. Ld.AR submitted that there was a valid reason for delay which has been elaborately explained in Form No.35, hence ld.CIT(A) should have condoned the delay and decided the case on merits.

2.2 Ld.AR also submitted that the notice u/sec.148 is bad in law, as income escaping assessment is less than the prescribed amount. Ld.AR invited our attention to page no.2 of the paper book which is computation of Capital Gains. Ld.AR submitted that sale consideration as per the agreement is Rs.45,50,000/-. Ld.AR submitted that as per the agreement, assessee is one of the three sellers, meaning thereby assessee’s share is 1/3rd. The impugned land was a hereditary land. The cost of acquisition was Rs.6,25,000/- and index cost of acquisition Rs.44,43,750/-. Therefore, Long Term Capital Gain for the entire land comes to Rs.1,06,250/-. Assessee’s share is 1/3rd in Rs.1,06,250/- which is Rs.35,416/-. Therefore, the notice under section 148 is bad in law as the amount is below taxable limit.

4  Sale consideration Rs.45,50,000/-  Cost of Acquisition Rs.6,25,000/-  Index Cost of acquisition Rs.44,43,750/-  Long Term Capital Gain Rs.1,06,250/-  Assessee’s Share being 1/3rd of Rs.1,06,250/- i.e. Rs.35,416/- 2.3 Therefore, ld.AR pleaded that even on merit assessment needs to be quashed.

Submission of ld.DR : 3. Ld.DR for the Revenue relied on the order of Assessing Officer and ld.CIT(A).

Findings &Analysis : 4. We have heard both the parties and perused the records. In this case, assessee had not filed Return of Income for A.Y.2011- 12. The AO had received information that assessee sold immovable property for Rs.45,50,000/-. Based on that, AO recorded reasons and after getting approval issued notice under section 148 of the Act. Since there was no compliance before the Assessing Officer, the Assessing Officer assessed total Rs.45,50,000/- as assessee’s income. Aggrieved by the assessment order, assessee filed an appeal before the ld.CIT(A) on 09.01.2019. 5 The assessment order was passed on 22.11.2018. Assessee has claimed that Assessee received assessment order on 03.12.2018. Ld.CIT(A) dismissed the appeal of the assessee on account of delay. Admittedly, there was delay of 07 days in filing appeal before ld.CIT(A). It is observed that assessee was critically ill during the period. This being the more than sufficient reason, to condone the delay. Therefore, we are of the opinion that ld.CIT(A) needs to condone the delay. Accordingly, we set-aside the order of ld.CIT(A) to ld.CIT(A) for denovo adjudication. The ld.CIT(A) shall provide opportunity of hearing to the assessee. Assessee shall file necessary documents before the Ld.CIT(A). Accordingly, grounds of appeal raised by the assessee are allowed for statistical purpose.