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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. CIT(A) dated 13-09-2022, National Faceless Appeal Centre, Delhi [ hereinafter referred to as (NFAC) ] for the assessment year 2010-11 wherein the assessee has raised the following grounds of appeal. ‘’1. That under the facts and in the circumstances of the case the ld. CIT(A) has erred in law and facts in confirming the addition amounting to Rs.8.51 lacs on account of sale of immovable property to the income of the appellant on this count is wrong, unwarranted and bad in law. Kindly delete the addition.
2.1 At the outset of the hearing, the Bench observed that there is delay of 13 days in filing the appeal by the assessee for which the ld. AR of the assessee filed a delay condonation application cum written submission praying therein as under:- ‘’1. This present appeal is filed on 25-11-2022 against the order passed by ld. CIT(A), NFAC, Delhi order dated 13-09- 2019 which is received by the assessee on 13-09-2022.
That this present appeal filed before Hon’ble ITAT, Jaipur Bench with a delay of 13 days.
3. Further, it is submitted that the reasonable cause of delay in filing the present appeal was due to time taken in appointment of new counsel. Assessee has appointed his new Counsel CA Raghuveer Singh Poonia for the present appeal case when the limitation period is about to end.
Moreover, it is submitted that after appointing new counsel, the counsel of appellant went to Mumbai for 10 days to attend World Congress of Accountants. In view of the above submission, the ld. AR requested to condone the delay and admit the appeal.’’ Written Submision:- 1. Assessee is an individual and resident of S/O Kishan Sahay Plot No. 24, Hanuman Vatika-A Gokulpura, Kalwar Road, Jhotwara, Jaipur, Raajastha- 302012.
3 NARSEE LAL VS ITO, WARD 1(3), JAIPUR 2. That the address mentioned on assessment order dated 15-11-2017 and on CIT(A), NFAC order dated 13-09-2022 (i.e. 807, Vyas Building, Near Tarkeshwar Temple, Chaura Rasta, Jaipur, Rajasthan 302 003) does not belong to appellant and the appellant never resides on the above mentioned premises.
That while applying for PAN Card, the person who was engaged in work of making PAN application had wrongly mentioned his shop or office address instead of assessee’s permanent residential address in his PAN application.
4. Further, it is submitted that while filing the Form No. 35, the old counsel of appellant had mentioned his personal mobile number and E-mail in Form No. 35.
That during the CIT(A) all hearing notices were sent to e- mail address of appellant’s counsel and he did not inform appellant regarding the hearing notices nor made any compliances to these notices and the reason for this was best known to appellant’s earlier counsel for not informing about the notices to the appellant.
That the non compliance of the said notices was due to mistake of appellant’s counsel and appellant was not aware about any hearing notices and non-compliance of notices during CIT (A). So, in the said circumstances, now appellant had filed this present appeal before your goodself and requested that kindly remand back the case to Assessing Officer because the assessment order was also ex-parte order. So, that proper enquiry can be conducted and substantial justice may be delivered to the appellant.’’ To this effect, the assessee filed an affidavit praying therein that the delay took place in filing the appeal because of the reason that his counsel Shri R.S. Poonia 2.2 On the other hand, the ld. DR objected to such delay but left the matter on the Bench to consider it as deem fit and proper in the case. 2.3 We have heard both the parties and perused the materials available on record. The Bench has taken into consideration the delay condonation application and written submission of the assessee and noted that the delay is not intentional but it is because of engagement of new counsel Shri R.S. Poonia and the assessee is prevented by sufficient cause in not filing the appeal in time. The Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji, 167 ITR 471 observed as under:-
‘’The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression " sufficient cause " in section 5 is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose of the existence of the institution of courts. A justifiably liberal approach has to be adopted on principle. "Every day's delay must be explained" does not imply a pedantic approach. The doctrine must be applied in a rational, common sense and pragmatic manner. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an evenhanded manner. There is no warrant for according a step-motherly treatment when the State is the applicant praying for condonation of delay. "When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay."
5 NARSEE LAL VS ITO, WARD 1(3), JAIPUR Keeping in view the present facts and circumstances of the case and the order of the Hon’ble Supreme Court (supra), the application of the assessee for condonation of delay in filing the appeal is allowed. 3.1 Brief facts of the case are that as per AIR information, the assessee had sold immovable property amounting to Rs.8.51 lacs in the F.Y. 2009-10 but no return of income had been filed for the A.Y. 2010-11. Thus the assessee did not disclose fully and truly all material facts necessary for his assessment. Therefore, the AO had reason to believe that the income of Rs.8.51 lacs had escaped assessment for the A.Y. 2010-11. In this case, the AO while making assessment asked the assessee to furnish the capital gain liability of sale of immovable property worth Rs.8.51 lacs but the assessee had failed to furnish the same. The AO thus noted that onus lies upon the assessee for not proving the capital gain liability of sale of property. It is also noteworthy to mention that the assessee has not filed any return of income during the year under consideration and thus AO took the amount of Rs.8.51 lacs towards income from undisclosed sources and added the same to the total income of the assessee. 3.2 In first appeal, the ld. CIT(A) confirmed the action of the AO by observing as under:- ‘’5.7 In view of the non-compliance, in view of the fact that the statement of facts and the grounds of appeal are not by 6. ITA NO.415/JP/2022 NARSEE LAL VS ITO, WARD 1(3), JAIPUR any proper statement or evidence and on perusal of the assessment order u/s 147/148 dated 15-11-2017, I find that the assessment made by the AO is justified and acceptable. Te appellant was provide multiple opportunities in the interest of natural justice. However, the appellant did not furnish any explanation or documentary proof to support this claim. The appellant’s claim that the notice u/s 148 as well as the assessment order was defective and invalid as the notice was not served to him on time. It was the appellant’s responsibility to intimate the AO regarding change of address and explain his capital gain liability. This position was confirmed by the Hon’ble Supreme Court of India. The appellant has shown a callous and non-serious attitude towards the departmental proceedings and it appears obvious that the appellant has nothing substantial to say with regards to his claims.
Accordingly, the treatment of Rs.8.51 lacs towards income from undisclosed sources of the year under consideration and addition made to the total income by AO is hereby confirmed. In view of the facts and circumstances and that the fact and the grounds of appeal are not substantiated by any proper statement or evidence, the appeal is dimissed.’’ 3.3 During the course of hearing, the ld. AR of the assessee prayed that the ld. CIT(A) has passed the ex-parte order and the assesseee was not provided adequate opportunity of being heard. Thus the assessee may be provided one more opportunity to advance his arguments/ submissions before the AO in the interest of equity and justice. 3.4 On the other hand, the ld. DR supported the orders of the lower authorities praying that the assessee was provided various opportunities by the lower
7. NARSEE LAL VS ITO, WARD 1(3), JAIPUR authorities to argue the case but the assessee was lethargic and unserious to pursue his case and thus the order passed by the ld. CIT(A) should be sustained. 3.5 We have heard both the parties and perused the materials available on record. The Bench observed that the assessee was really lethargic and unserious in pursuing his case in spite of providing various opportunities by the ld. CIT(A) and the AO as mentioned in their orders. It is undisputed fact that the assessee was granted several authorities either by the ld. CIT(A) or by the AO to argue the case but the assessee remained non-cooperative and negligent in pursuing her case on the dates of hearing of the appeal for which the Bench awards cost of Rs.5,000/- and the same may be deposited in the Prime Minister Relief Fund and copy of the same shall be submitted to the AO for proof and thus the appeal of the assessee is restored to the file of the AO to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of assessment proceedings before the AO. Thus the appeal of the assessee is allowed for statistical purposes. 3.6 Before parting, we may make it clear that our decision to restore the matter back to the file of the A.O. shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by A.O. independently in accordance with law.
4.0 In the result, the appeal of the assesee is allowed for statistical purposes. Order pronounced in the open court on 10 /05/2023.