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Income Tax Appellate Tribunal, DIVISION BENCH’A’, CHANDIGARH
Before: SHRI. SANJAY GARG & DR. B.R.R. KUMAR
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH’A’, CHANDIGARH BEFORE SHRI. SANJAY GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA No.938/Chd/2017 Assessment Year: 2009-10
Sh. Mahabir Singh Vs. The ITO S/o Sh. Het Ram Ward 2 VPO Bani, Rania Distt. Sirsa Sirsa
PAN No. CDVPM5319N
(Appellant) (Respondent)
Assessee By : Shri. Amitoz Singh Kamboj Revenue By : Smt. Chandrakanta
Date of hearing : 01/08/2018 Date of Pronouncement : 07/08/2018
ORDER PER DR. B.R.R. KUMAR, A.M:
The present appeal has been filed by the Assessee against the order of the Ld. CIT(A), Hisar dt. 10/08/2016.
At the outset it is stated that the appeal was time barred by 240 days for which request for condonation of delay was filed by the assessee. The extract of the said request letter is reproduced hereunder:
That I am an agriculturist having ancestral land and an illiterate person.
That I primarily own only agricultural land and being ancestral property, income from the same was treated as HUF income as per the advice of legal consultant in all the preceding years. 3. That the Income Tax Officer Ward 2, Sirsa vide order dated 22/03/2013 had assessed income on account of agricultural income and interest income in my hand an d accordingly appeal with worthy CIT(A) was filed. 4. That I am having no knowledge of the taxation laws and the laws of land and relied on the thorough knowledge of my previous counsel.
That the Worthy CIT(A) passed an order dated 10/08/2016 and I was no aware of the due date of the further appeal to Hon'ble ITAT which falls within 60 days i.e. 09/10/2016 from the receipt of the said order and was under this impression that my previous counsel had undertaken the due process.
That I have my residence situated in District Sirsa, Haryana whereas as my previous counsel had his office situated in District Hisar, Haryana.
That my previous counsel never informed me about the status of filing of appeal before the Hon'ble ITAT.
That thereafter no communication happened between me and my previous counsel and only on the call from Income Tax Department regarding recovery of tax dues. I came to know about the fact that the additions made in my case had not been deleted and no further appeal has been filed by my previous counsel.
That thereafter I approached new counsels and accordingly appeal before the Hon'ble ITAT was filed on 06/06/2017.
That in this way there has been a delay of 240 days and that there had been no intention from my side to jeopardize the interest of the revenue by delaying the process of the filing of appeal. My affidavit detailing the aforesaid facts may kindly be placed before the Hon'ble Appellate Tribunal for the condonation of the delay in the submission of the appeal.
Against the submission of the Ld. AR, the Revenue has filed objections in writing which are as under:
“ In this connection, it is submitted that Shri. Mahabir Singh S/o Het Ram, Village Bani, Tehsil Rania, Sirsa is agriculturist. Brief facts of the case are that he had filed appeal before CIT(A) against the order of Income Tax Officer sirsa dt. 22/03/2013. The CIT(A) dismissed the appeal of the assessee vide order in appeal No. 17/SRS/TFR13-14 dt. 10/08/2016. Although the assessee is a agriculturist and is not aware of / nor can be expected to know the nuances of Income Tax laws. The explanation offered by the assessee vides Para no. 7 & 8 of the affidavit before the Hon’ble Income Tax Appellate Tribunal, Chandigarh Bench. a)That I have my residence situated in District Sirsa, Haryana where as my previous counsel had his office situated in District Hisar, Haryana. b)That my previous counsel never informed me about the status of filling of appeal before the Hon’ble ITAT. is vague and evasive. Though there is total inaction and gross negligence on the part of the assessee for not enquiring the status of appeal from his counsel, yet technicalities should not prevail over the justice.” 4. We have heard both the parties and after going through the contents of the application supported by the affidavit filed by the assessee, we find that the delay of 240 days has occurred for reasons beyond the control of the assessee. We further note that no benefit is drawn by the assessee if the delay is condoned nor is any loss visited on the Revenue on account of the same. Further it cannot also be said that any vested right stood created in favour of the Revenue on account of the late filing of the appeal by the assessee, which would be upset by the condonation of delay. Accordingly being satisfied with
the explanation of the assessee we hold that the delay of 240 days has occurred for reasons beyond the control of the assessee and the delay is accordingly condoned.
In the present appeal Assessee has raised the following grounds:
That the notice issued under section 148 of the Income Tax Act, 1961 to the Assessee may be rendered to be invalid on the account of non mentioning of the status of the assessee on the said notice. 2. That the Ld. AO has erred in assessing the income earned on the account of bank interest of Rs. 3,32,836/- in the status of the ‘individual’ as the same belongs to the ‘HUF’ of the assessee. 3. That the Ld. AO was not justified in assessing the agricultural income at Rs. 5,00,000/- in the hands of assessee although such income belonged to the ‘HUF’ of the assessee. 4. That the Ld. AO has erred in completing the status of ‘individual’ while the income derived during the year belonged to the ‘HUF’ of the assessee. 6. Ground number 1and 2 not pressed.
Ground No. 3 relates to assessing of the agricultural income in the hands of the assessee though the land and subsequent income belongs to HUF.
Before us, the Ld. AR argued that the income derived from the agricultural land belongs to the HUF where as the Assessing Officer has wrongly taken it in the hands of the assessee that too on estimate basis.
It was argued that for the assessment year 2007-08 the Revenue has accepted the contention of the assessee that the Land belongs to HUF indeed. The relevant part of the Ld. CIT(A)’s order is as under:
The appellant filed copy of Intkaal/Mutation dgited 16/12/1929 and also copy of Intkaal/Mutation dated 15/11/1958 along with his affidavit wherein it was stated that the Agriculture Land around 10-12 Acres situated in Village Bahi, Tehl Rania and District Sirsa (Haryana) was transferred by his Grand Father Sh Dhayana Ram to his father Sh. Het Ram vide mutation dated 16-12-1929 and subsequently the same land was transferred by his father L Sh Het Ram to him vide mutation dated 15-11-1958. Hence as per the revenue records the agriculture land being ancestral belongs to the HUF of the appellant.
In view of the above, the addition made by the AO on account of agriculture income amounting to Rs 500000/- is deleted and this ground Of appeal is allowed.
Since the issue stands adjudicated in favour of the assessee in the earlier year and against the assessee for the instant year, to have an uniformity of justice, the issue is referred back to the file of CIT(A) to check the facts on
record, determine the ownership of the land and subsequently take a considered decision as to who is to be assessed with regard to the agricultural income , whether the assessee as individual or HUF as the owner of the land taking into consideration all the material facts.
As a result, appeal of the Assessee is allowed for statistical purposes.
Order pronounced in the Open Court.
Sd/- Sd/- (SANJAY GARG) (DR. B.R.R. KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated : 07/08/2018 AG Copy to: The Appellant, 2.The Respondent, 3.The CIT,4.The CIT(A), 5.The DR 1.