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Income Tax Appellate Tribunal, PUNE BENCHES “B” :: PUNE
Before: DR.DIPAK P. RIPOTE & SHRI VINAY BHAMORE
ORDER
PER DR. DIPAK P. RIPOTE, AM:
This appeal filed by the assessee directed against the order of ld.Commissioner of Income Tax(Appeals)[NFAC] u/sec.250 of the Income Tax Act, 1961; dated 16.07.2024 for the A.Y.2015-16. The Assessee has raised the following grounds of appeal :
1. The learned CIT(A) erred in dismissing the appeal in limine by refusing to condone the delay of 224 days in filing the appeal against the asst. order u/s 147 without appreciating that the said delay was due to reasonable cause and the same ought to have been condoned in the interest of justice.
The learned CIT(A) failed to appreciate that the appellant lady was facing severe back problems during the relevant period when the asst. order u/s 147 was passed which resulted into delay in filing the impugned appeal and the said delay ought to have been condoned in the interest of justice.
3. The learned CIT(A) erred in not appreciating that identical addition towards alleged unaccounted receipt on sale of land made in case of co- owner i.e. husband of the assessee vide asst. order u/s 147 dated 29.03.2022 for A.Y.2015-16, had been challenged by filing appeal before CIT(A) well within stipulated time limit and therefore, there was no reason for the appellant lady to not file appeal on identical issue in her case within time and thus, the delay in filing the present appeal ought to have been condoned in the interest of justice.
4. The learned CIT(A) further erred in not appreciating that the share of the assessee in the impugned land sold during this year was only 1/4th and therefore, the A.O. had apparently erred in taxing the full amount of alleged unaccounted sale consideration of Rs.62,50,000 as undisclosed income in hands of the assessee which had resulted into double taxation of the same amount which has also been subjected to tax in hands of the husband of the assessee and thus, denial of adjudication on merits by relying on technical considerations was highly unjustified on facts of the case.
The appellant craves leave to add/ alter amend any of the grounds of appeal.”
2 Findings and Analysis: 2. We have heard both the parties and perused the records.
2.1 As per the Assessment Order in this case Assessing Officer had issued notice u/s 148 based on the information appearing on the INSIGHT PORTAL of Income Tax department that the assessee had sold plot of Land to Dr.Abhale Partner of M/s.Atharva Builders & Developers by paying Rs.62,50,000/- over and above the amount appearing in the Purchase deed. Assessee filed Return of Income in response to notice u/s 148. Assessee filed computation of income and explanation. Assessee denied any receipt above the Purchase price. Assessee also submitted that assessee owns only 1/4th Share of the land. Assessee also asked for an opportunity of Cross Examination of Mr.Abhale partner of Atharva Builders & Developers as AO has relied on a piece of paper found during the search in the case of Atharva Builders and Developers. Assessee also specifically submitted that the name mentioned on the piece of paper is not of any of the Co-owners of land, including assessee. However, it is observed from the Assessment Order that the AO has not provided any opportunity of cross examination. However, the Assessing Officer added entire 3 amount of Rs 62,50,000/- to the income shown by the assessee in the return and passed the assessment order. Aggrieved by the Assessment Order the assessee filed an appeal before the Ld.CIT(A). However, there was a delay of 231 days in filling appeal before Ld.CIT(A). Ld.CIT(A) dismissed the appeal, the relevant paragraph of Ld.CIT(A)’s order is reproduced here asunder : Quote, “There exists no sufficient or good reason for condoning inordinate delays of more than 231 days in filing appeal. Accordingly, this appeal is dismissed as barred by limitation. Accordingly I decline to condone the delay of 231 days, and dismiss this appeal of the appellant as barred by limitation. In view of the above discussion appeal is rendered as inadmissible. Hence stand dismissed. ” Unquote.
In the Form Number 35 filed before the Ld.CIT(A) the assessee had mentioned that due to ill health the assessee could not file appeal in time. During the appellate proceedings the Assessee had also filed Medical Certificate.
3.1 Before us the Ld.AR again filed copy of Medical Certificate issued by Supreme Health & Traum Care Centre Nashik duly signed by an Orthopaedic Surgeon dated 08/04/2023 certifying that the assessee was under treatment since 25/03/2023. The medical 4 certificate also contains the Registration number and name of the doctor. The assessment order is dated 30/03/2023. However, in the order under section 250 of the Act, ld.CIT(A) in Para 1 has mentioned incorrect date i.e.23.03.2023. Thus, the illness of the assessee and date of assessment order coincides. Assessee also filed an Affidavit before us explaining the reason for delay in filling appeal before Ld.CIT(A).
3.2 In these facts and circumstances of the case we are convinced that there was reasonable and sufficient cause for delay. Hence, we are of the opinion that delay needs to be condoned in this case.
3.3 Accordingly, we set aside the Order of the Ld.CIT(A) to Ld.CIT(A) for de-novo adjudication. Ld.CIT(A) shall provide opportunity of hearing to the assessee. Assessee shall file all necessary documents before the Ld.CIT(A).
It is observed from the Assessment Order that Assessing Officer may not have provided copy of reasons recorded for reopening.
5 4.1 The Hon’ble Jurisdictional High Court in the case of Tata Capital Financial Services Ltd Vs. ACIT [2022] 443ITR 127 (Bombay)[15-02-2022] has given following directions to the department : Quote, “ 8. In the circumstances, the Revenue is directed to adhere to the following:(a) While communicating the reasons for re-opening the assessment, a copy of the standard form/request sent by the Assessing Officer for obtaining approval of the Superior Officer should itself be provided to the assessee. This would contain comment or endorsement of the Superior Officer with his name, designation and date. The Assessing Officer shall not merely state the reasons in the letter addressed to the assessee.
(b) If the reasons make reference to any other document or a letter or a report, such document or letter or report should be enclosed to the reasons. Such portion as it does not bear reference to the assessee concerned could be redacted.
(c) The order disposing the objections should deal with each objections and give proper reasons for the conclusion.
(d) A personal hearing shall be given and minimum seven working days advance notice of such personal hearing shall be granted.
(e) If the Assessing Officer is going to rely on any judgment/order of any Tribunal or Court reference/citation of these judgment/orders shall be provided alongwith notice for personal hearing so that the assessee will be able to deal with/distinguish these judgments/orders.
A copy of this order be placed before the members of the Central Board of Direct Taxes who shall issue guidelines to all its officers based on the directions given above with clear instructions that they shall be strictly followed. We only hope that, this will reduce the same 6 errors being repeated by the concerned revenue authorities and will not drive the assessee to rush to the court. Thereby, the burden on the court will also get reduced. ” Unquote. 4.2 Subsequently, Hon’ble Jurisdictional High Court in the case of Sahebrao Deshmukh Co-op. Bank Ltd Vs. ACIT 455 ITR 92 (Bombay)[10-02-2023] also reproduced the said directions.
4.3 In this case, the assessment order was passed on 30/03/2023 that is one year after the directions of Hon’ble Jurisdictional High Court. However, in the assessment order no where it is mentioned that copy of reason was provided to the assessee, rather in the statement of facts filed before the Ld.CIT(A) the assessee pleaded that copy of statement of Mr.Abhale has not been provided to the assessee. Therefore, Ld.CIT(A) shall follow the directions issued by Hon’ble Jurisdictional High Court.