VISHNU PAREEK,JAIPUR vs. CIT(A), JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 292/JP/2022 fu/kZkj.k o"kZ@Assessment Years : 2009-10 cuke Shri Vishnu Pareek CIT(A) Vs. Kuntil Kuti, Naya Bazar, Jaipur Jobner, Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABZPP 6683 J vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Mahendra Gargieya (Adv.) jktLo dh vksj ls@ Revenue by : Smt Chanchal Meena (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 29/03/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 20/04/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM

This appeal is filed by the assessee aggrieved from the order of the Commissioner of Income Tax, Appeals-3, Jaipur [ Here in after referred as Ld. CIT ] for the assessment year 2009-10 dated 16.05.2019 which in turn arises from the order passed by the DCIT, Circle-07, Jaipur passed under Section 147/143(3) of the Income tax Act, 1961 (in short 'the Act') dated 14.12.2016.

“1. The ld. CIT(A) seriously erred in facts and law in dismissing the appeal on account of delay of 162 days in filing of appeal before him against Assessment Order dated 14.12.2016 passed u/s 147/143(3), without judiciously considering the reason furnished before him and ultimately denying to condone the delay. The decision of the ld. CIT(A) being contrary to the provisions of law and facts, the delay so may kindly be condoned and the ld. CIT(A) be directed to decide the appeal on merits.

K. L. Sharma has furnished copy of ITR filed by the assessee on 12.02.2010 in compliance of notice u/s 148 of the IT Act, 1961. Notice U/s 143(2) & 142(1) of the IT Act, 1961 was issued on 11.11.2016 and case was fixed for hearing on 15.11.2016. During the year under consideration the assessee is engaged in the business of civil construction and gross turnover of Rs. 1,03,96,920/- & gross profit of Rs. 6,84,634/- has been declared by the assessee in his return of income for the year under consideration.

3.1 After considering the details and documents furnished by the AR of the assessee and as per the information received from ITO ward 3(1), Jaipur that the assessee has sold an immovable property on 22.08.2008 on total value of Rs. 11,00,000/-. Therefore, assessee was required to show cause as to why the sum of Rs. 11,00,000/- should not be added to total income under the head capital gain as same has not been offered. In compliance to the show cause the assessee submitted that assessee has 11,00,000/- already included. The assessee purchases the plots and constructs the flat and house and thereon and sales the same. This is the regular business of the assessee. He is not investor in the land and building. The ld. AO stated that replies filed by the AR of the assessee has been considered but the same is not tenable as the assessee has failed to furnish any supporting evidences in support of his contention that he had shown the sale consideration received from sale of aforementioned plot in his total receipts for the year under consideration. Hence the ld. AO computed the capital gain on the said property at Rs. 10,06,86/- [ Rs. 11,00,000/- sales consideration less cost of acquisition Rs. 93,814/- ] and added in the income of the assessee.

4. Being aggrieved from the order of the assessment the assessee carried the matter in appeal before the ld. CIT(A). The appeal of the assessee filed before the ld. CIT(A) was delayed by 162 days. The appellant filed a petition for condonation of the delay. The ld. CIT(A) did not find the merits in the condonation petition dismissed the appeal of the assessee by observing that:

“3. I have carefully considered the reason given for condonation delay. I find that the reason given by the appellant is baseless and without any supporting evidences.

5 Vishnu Pareek vs. CIT(A) Therefore I am the view that the appellant is not file the appeal within time without any genuine cause. Hence I reject the condonation delay of 162 days and appeal is also dismissed at the admission stage.”

The assessee is engaged in the business of civil construction under the name Pareek Construction Consodium. His gross turnover is of Rs. 1,03,96,920/- and gross profit of Rs. 6,84,634/- has been declared in the Return of Income filed for AY2009-10. The assessee purchases plots and constructs flats and houses thereon for further sales. The case of the assessee was selected for scrutiny and the assessment was completed vide order dated 14.12.2016 u/s 147/143(3) at total income of Rs.15,38,580/- the AO held as under: “Replies filed by the AR of the assessee has been considered but the same is not tenable as the assessee has failed to furnish any supporting evidences in support of his contention that he had shown the sale consideration received from sale of aforementioned plot in his total receipts for the year under consideration. The assessee has not shown any supporting evidences which can prove that the property under consideration has been shown by him in the opening stock on 01.04.2008. further, the assessee failed to furnish the complete details of receipts shown by him in his return of income hence, whether the assessee has shown the sale consideration of above referred property or not, is not ascertainable. Despite ample opportunities provided to the assessee during assessment proceedings, he has failed to establish that the plot under consideration was shown by him in his opening stock as on 01.04.2008 hence, the gain arised on sale of this plot is being computed under the head long term capital gain. X X X X X Based on above discussed facts, an addition of Rs. 10,06,186/- is being hereby made to the total income of the assessee under the head Long Term Capital Gain earned on sale of plot number 40, Shivpuri, Jhotwara, Jaipur situated at and taxed in his hands accordingly.”

6 Vishnu Pareek vs. CIT(A) On further appeal by the assessee, the CIT(A) dismissed the appeal vide order dated 17.05.2019 held as under: “I have carefully considered the reason for condonation delay. I find that the reason given by the appellant is baseless and without any supporting evidences. Therefore I am the view that the appellant is not file the appeal within time without any genuine cause. Hence I reject the condonation delay of 162 days and appeal is also dismissed at the admission stage.” Hence this appeal

Submission: GOA 1: CIT(A) was not justified in denying to condone the delay Facts: As stated above Submission: 1. There did exist sufficient cause: 1.1 The Ld. CIT(A) mechanically dismissed the appeal simply rejecting the prayer made for condonation of delay of 162 days in as much as the appeal against the Assessment Order u/s 147/143(3) dated 14.12.2016 was to be filed on/before 13.01.2017 however was filed on 26.06.2017 with a delay of 162 days. 1.2 It was submitted before him that ld. CA and A/R of the assessee, Shri Sharma was suffering from prolonged illness and weakness, but was rejected by the ld. CIT(A) saying that the reason given by the appellant is baseless and without any supporting evidences. However, the ld.CIT(A) did not appreciate that the AR himself appeared before him and submitted the prayer for condonation of delay as: “I have received the assessment order on 16.12.2016 but since very long time I was suffering from weakness. I could not look after my official work. Hence, you are kindly requested to condone the delay in filing of the appeal” If he was not satisfied, nothing prevented him to ask the AR to bring supporting evidence or to confront him of any doubt in his mind. But without giving any opportunity he dismissed the appeal causing a serious prejudice to the appellant who was not aware of this development. 1.3 Later on Shri Sharma expired because of corona. Unfortunately, the widow of Shri Sharma not being conversant with the medical papers and also with the clients namely the appellant, did not handover the supporting medical papers to him. Kindly refer Membership details available on ICAI Official Portal marked as Annexure-B.

7 Vishnu Pareek vs. CIT(A) 1.4 The assessment order was received by his CA late Shri K.L. Sharma and the assessee was not aware because he was fully dependent on his representative only. 1.5 In support of these contentions an affidavit of the appellant duly sworn is enclosed herewith marked as Annexure-A. 2.1 The facts are evident that the appellant was fully dependent on the advice of his counsel. Not being an expert he had engaged a professional who was supposed to take care of the statutory requirements. The delay, if any was caused due to the inabilities being faced by his tax consultant. Thus, the delay was beyond his control. It cannot be said that delay was due to the negligence and due to the inaction on the part of the assessee, which could have been avoided. 2.2 Further the appellant was not going to gain any benefit because of the delayed filing and his conduct was not contumacious. That the appellant was serious and interested in prosecuting the appeal in as much as he had already engaged tax consultant and also made the payment of the filing fees of appeal before the first appellate authority.

3. Supporting Case Laws: 3.1 It is submitted that the Hon'ble Supreme Court in the case of Collector, Land & Acquisition v. Mst. Katiji & Others (1987) 167 ITR 471(SC) has advocated for a very liberal approach while considering a case for condonation of delay. The following observations of the Hon'ble Court are notable: "The legislature has conferred the 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' employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which sub serves the ends of justice-that being the life-purpose of the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But, the message does not appear to have percolated down to all the other Courts in the hierarchy." 3.2 As held in the case of Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi (1979) 118 ITR 507 (SC). “8. I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by Courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and laymen, as litigants are, may legitimately lean on expert counsel in legal as in other Departments, without probing the professional competence of the advice. The Court must, of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an 8 Vishnu Pareek vs. CIT(A) application under s. 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers." 3.3 In the case of United Christmas celebration committee charitable trust vs. ITO. (2017) 249 Taxman 0372 (Madras) (Delay 1631 days), held that “Appeal—Condonation of delay—Tribunal refused to entertain appeal of Assessee-charitable institution filed against order passed by CIT(A) only on ground that, it was woefully delayed by 1631 days—Held, there was enormous delay in moving appeal before Tribunal—Assessee had not filed petition for condonation of delay, which was supported by affidavit of Assessee—Chartered Accountant engaged in matter was unaware of fact that appeal could be filed against order of CIT, post amendment made in Section 253(1)(c)—Name of Chartered Accountant was mentioned in petition—Counsel could not have conjured up name of Chartered Accountant—Not only period of delay has to be taken in account but also quality of explanation, the legal assistance, if any, sought and rendered to litigant, and detriment that condonation of delay would cause to the opposing party—Assessee did not receive best legal assistance in matter—There was nothing on record to suggest that Revenue refuted this averment made in petition—Therefore, notwithstanding fact that, period of delay was large, delay was condoned, especially in circumstances obtaining in case, as it would not cause detriment to Revenue—Assessee’s Appeal allowed”

3.4 Further, in the case of Hosanna Ministries vs. ITO. (2017) 1 NYPCTR 292 (Mad.) (Delay 1902 Days), (DPB 1-6) held that “Appeal (Tribunal)- Condonation of delay- Reasonable cause- Delay of 1902 days in filing appeal against CIT’s order under s. 12AA was, as explained by assessee, on account of non-advise on the part of the professional, who has been engaged by the assessee and the ignorance of law by the assessee itself- Assessee knew well that if a plea of ignorance of law is taken, that would be, on face of it, rejected by court/Tribunal, nevertheless , such a plea alone had been taken by the assessee and that itself would show the inherent genuineness attached with the reason cited by the assessee for such huge delay-court must take a pragmatic view in appreciating the reasons attributable to the delay caused to the party to approach the court of law further reason given by the tribunal for arriving at such a conclusion that the assessee was not engaging in activities in accordance with the objects specified in the trust deed also is not supported by materials as it is clear that the assessee has been functioning after proper registration with the authorities concerned under the juvenile Act- Impugned order of the Tribunal set aside.”

3.5 In the case of Mukesh Jesangbhai Patel vs. ITO (2013) 213 Taxman 37 (Mag.) (Guj) (HC) (DPB 7-10) held as under: “S.253: Appellate Tribunal – Appeal – Condonation of delay – High Court condoned the delay of more than one year due to negligence of lawyer. Assessee running a tuition centre, an assessment order was passed. Against said order,

9 Vishnu Pareek vs. CIT(A) assessee filed an appeal before Tribunal with a delay of over one year. Tribunal dismissed appeal being barred by limitation. On appeal, it was noted that on account of negligence of assessee’s lawyer, appeal could not be filed within prescribed time. Further, sickness of mother was also a contributing factor as assessee was engaged in attending to her. The Court held on facts, cause shown by assessee for delay in filing appeal was genuine and bona fide, therefore, impugned order was to be set aside and, matter was to be remanded back for disposal on merits. (A.Y. 1999-2000 to 2001-02)”

3.6 In Vijay Vishin Meghani & ANR. Vs. DCIT & Anr. (Bom.HC), (2017) 299 CTR 463 (Bom) (Delay 2984 Days) (DPB 11-17) held that “Appeal—Condonation of Delay—Claim for deduction under Section 80-O made by Assessee was disallowed by AO for Assessment Year 1993-94 and confirmed by the Commissioner of Income Tax (Appeals)—Against order of Commissioner, assessee preferred appeal before Tribunal—Tribunal restored matter back to file of AO for Assessment Year 1993-94—AO passed order allowing claim under that section of the I.T. Act, 1961—Assessee preferred rectification application to AO to rectify his order for Assessment Year 1994-95 and Assessment Year 1996-97— Rectification application was rejected by AO—CIT(A) upheld order of AO— Assessee filed application for condonation of delay in filling appeal against order of CIT(A)—Tribunal held that assessee simply put responsibility for delay on Revenue—Tribunal dismissed two appeals filed by assessee holding that same as barred by limitation—Tribunal held that delay of 2984 days in filling appeal could not be condoned—Held, Supreme Court in case of Concord of India Insurance Co. Ltd.Vs. Smt. Nirmala Devi and others held that legal advice tendered by a professional and litigant acting upon it one way or other could be sufficient cause to seek condonation of delay and coupled with other circumstances and factors for applying liberal principles and then said delay can be condoned—None should be deprived of an adjudication on merits unless the Court of law or the Tribunal/Appellate Authority found that litigant deliberately and intentionally delayed filing of appeal—Tribunal though aware of these principles but possibly carried away by fact that delay of 2984 days was incapable of condonation—In process Tribunal went about blaming assessee and professionals and equally Department—Tribunal's order did not meet requirement set out in law—Tribunal completely misdirected itself and had taken into account factors, tests and considerations which had no bearing or nexus with issue at hand—Tribunal, therefore, erred in law and on facts in refusing to condone delay—Explanation placed on affidavit was not contested nor Court found that from such explanation , High Court could not arrive at conclusion that assessee was at fault, he intentionally and deliberately delayed matter and had no bona fide or reasonable explanation for delay in filing proceedings—High Court condoned delay of 2984 days in filing appeals—Assessee’s Appeals allowed”. 3.7 Recently this Hon’ble in the case of Kishan Lal V ITO (2020) 207 TTJ (Jp) 1089 held as under:

10 Vishnu Pareek vs. CIT(A) “Appeal (Tribunal)—Condonation of delay—Reasonable cause—Assessee moved a revision application under s. 264 before the Principal CIT against the order of the CIT(A) instead of pursuing further appeal before the Tribunal on the basis of the advice of his local counsel—Said advice of the counsel seems to be guided by the fact that there was recovery pressure from the Department and an attachment notice was issued by the TRO attaching the immovable property of the assessee— After the revision application was rejected, assessee filed the appeal before the Tribunal pursuant to the advice of another counsel—Thus, assessee has made out a clear case that there was sufficient cause which being beyond his control, prevented him from filing the appeal in time before the Tribunal—It cannot be said that the delay was due to the negligence and inaction on the part of the assessee, which could have been avoided—There is no culpable negligence or mala fide on the part of the assessee in delayed filing of the present appeal and he does not stand to benefit by resorting to such delay—Therefore, there exists reasonable cause for condoning the delay of 489 days in filing the present appeal.” 3.8 In the case of ITO vs. International Rubber & Plastics (2011) 136 TTJ “Appeal(Tribunal)-Cross-objection by other party-Condonation of delay- Reasonable cause Tribunal in his duty to render substantial justice consider that wife of the deceased assessee was not aware of the dealings of her husband X, partner of the firm and therefore could become aware of tax implication only when chartered accountant advised her on the matter and condoned the delay and cross examination were admitted.” 3.9 We also rely cases reported in 35 NYPTTJ 546(Jd) (DPB 26-28) & 215TTJ 617 (Nag) (DPB 29-37) In view of the above facts, the delay occurred in filing of first appeal before the ld.CIT(A) may be condoned and he may kindly be directed to decide the appeal on merits.”

Ltd. Vs. Smt Nirmala Devi 118 ITR 507. The notable finding of the court in that case is reiterated here in below:

“8. I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by Courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and laymen, as litigants are, may legitimately lean on expert counsel in legal as in other Departments, without probing the professional competence of the advice. The Court must, of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an

In the result, appeal of the assessee is allowed for statistical purpose.

14 Vishnu Pareek vs. CIT(A) Order pronounced in the open court on 20/04/2023. Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 20/04/2023 *Ganesh Kumar आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Sh. Vishnu Pareek, Jaipur izR;FkhZ@ The Respondent- CIT(A), Jaipur 2. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत xkMZ QkbZy@ Guard File (ITA No. 292/JP/2022) 6. vkns'kkuqlkj@ By order,

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