KIRANBEN YOGESHBHAI PATEL,SURAT vs ITO WARD-2 (2)(2), SURAT

Income Tax Appellate Tribunal, SURAT BENCH, SURAT

Before: SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM

For Appellant: Shri J. K. Chandnani, Sr. DR

For Respondent: Shri J. K. Chandnani, Sr. DR

Hearing: 24/06/2022

आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned two appeals filed by the different assessees, pertaining to Assessment Years (AY) 2008-09, are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals)-1, Surat [in short “the ld. CIT(A)”] both dated 04.06.2018, which in turn arise out of separate assessment orders passed by the Assessing Officer under section 143(3) r.w.s 147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) dated 21.03.2016 and 07.03.2016 respectively.

ITA.200 & 201/SRT/2020/AY.2008-09 Kiranben Y. Patel & Manjulaben K. Patel

2.Since, the issue involved in these two appeals are common and identical, therefore these appeals have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity.

At the outset, Learned Counsel for the assessee informs the Bench that both these appeals filed by assessees are barred by limitation by 766 days. Both the assessees filed the petition for condonation of delay. The contents of the petition for condonation of delay are similar in both the appeals, therefore, as a sample, we reproduce the contents of the petition for condonation of delay in the case of Smt. Kiranbhai Yogeshbhai Patel (in ITA No. 200/SRT/2020):

AFFIDAVIT “I, Kiranben Yogeshbhai Patel wife of Yogeshbhai Patel resident at At & Post: Sosak, Taluka: Olpad, Dist: Surat - 394540, Gujarat. And I am a housewife, hereby solemnly affirm and declare as under: 1. That I am assessed to income-tax by the Assessing Officer, Ward -2(2)(2) on file bearing Permanent Account Number CXAPP0342K. 2. That I preferred an appeal to the Commissioner (Appeals) - 1 Surat against the Assessing Officer's order of assessment dated 21st March, 2016 for the assessment year 2008-09. 3. That I received the order of the said Commissioner (Appeals)-1 Surat on 4th June, 2018. 4. That being aggrieved by the said order I requested any Professional C P D S & Associates, Chartered Accountants to prefer an appeal to the Hon'ble Appellate Tribunal. 5. Where they filled three appeals of mine and others were of my sisters. Appeal order of Ms. Induben R. Patel on 21st August, 2018 was favorable. So, I also assumed that it same way my order was also favorable, but when I get demand notice, I come to know that my appeal was against me. Sir, last 6-month delay was due to COVID-19. This reason restricted me to file appeal before Tribunal. 6. That soon thereafter I got in touch with my Professional and had the appeal filed on 1st September, 2020. I further declare that the above statement is true and correct to the best of my knowledge and belief.”

ITA.200 & 201/SRT/2020/AY.2008-09 Kiranben Y. Patel & Manjulaben K. Patel 4. Shri Mehul Shah, Learned Counsel for the assessee contended that assessee has filed an application under section 154 of the Act for rectification of order, and the process under section 154 took more than one year. That is, the assessee was seeking another alternative remedy, therefore delay has occurred. Therefore, ld Counsel contended that such delay should be condoned and for that he relied on the judgement of the Co-ordinate Bench of Bangalore in the case of M/s Honnappa Kavitha in ITA No.1847/Bang/2019, order dated 22.10.2020 wherein it was held that assessee was seeking another alternative remedy available under the Act therefore delay in filing the appeal has occurred, and such delay was condoned by the Tribunal. 5. On the other hand, Ld. Departmental Representative (Ld. DR) for the Revenue opposed the prayer for condonation for delay. 6. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that in order to get the order rectified, the assessee filed rectification application under section 154 of the Act, and in this process assessee took more than one and half year. Thereafter, six months delay was due to COVID-19 pandemic. This way, assessee has explained the delay in a satisfactorily manner. We note that since assessee was seeking alternative remedy available under the law, and therefore delay should be condoned, for that reliance can be placed on the judgement of the Co-ordinate Bench of Banglore in the case of M/s Honnappa Kavitha in ITA No.1847/Bang/2019, order dated 22.10.2020 wherein it was held as follows: “3. In course of hearing, learned AR of the assessee submitted that regarding reasons of delay of 440 days in filing appeal before CIT (A), the explanation of the assessee are noted by CIT (A) in para 4.1 of his order, as per which, it is explained by the assessee that the assessee was waiting for the rectification pending before the AO against the order u/s 143 (1). She submitted that from this explanation, it comes out that delay was for this reason that the assessee was pursuing an alternative remedy available under the law because there was no dispute about quantum of income because returned income was accepted and the dispute was only regarding non granting of credit for TDS of Rs. 13,00,710/- by DCIT (CPC) which

ITA.200 & 201/SRT/2020/AY.2008-09 Kiranben Y. Patel & Manjulaben K. Patel can be rectified u/s 154. She submitted that the learned CIT (A) has reproduced the assessee’s explanation in this regard from Form 35 in Para 4 of his order and as per the same, the assessee had filed rectification petition u/s 154 on 23.01.2017 after receiving the demand notice on 09.01.2017. She further pointed out that this rectification petition u/s 154 filed on 23.01.2017 was disposed of by CPC on 30.01.2017 but CPC has in fact CPC transferred the rectification petition u/s 154 to the AO on this wrong basis that rectification request is in respect of deduction under chapter VIA. She submitted that after receipt of this order from CPC also, the assessee was pursuing the matter before the AO and because of these reasons, delay was caused. She placed reliance on the tribunal order rendered in the case of M/s Vakratunda Holdings Pvt. Ltd. Vs. DCIT in ITA No. 1084/bang/2017 dated 31.10.2017 and submitted that the copy of this tribunal order is available on pages 48 to 50 of the paper book and pointed out that in para 7, the tribunal has held that if it is found that the assessee is bonafidely pursuing alternative remedy available under the law, the delay for that reason should be condoned. She submitted that in view of this tribunal order, the delay should be condoned in the present case also. Learned DR of the revenue supported the order of CIT (A). 4. We have considered the rival submissions. We find that in the facts of the present case as noted above, we are satisfied that the assessee was bonafidely pursuing alternative remedy available under the law and therefore, by respectfully following this tribunal order, we condone the delay in filing of appeal before CIT (A) and restore the matter back to the file of CIT (A) for a decision on merit.”

Therefore, considering above facts and legal position, we condone the delay and admit both the appeals filed by the assessee for adjudication on merits.

Since, the issues involved in all the appeals are common and identical; therefore, these appeals have been heard together and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated in ITA No.200/SRT/52020 for AY.2008-09, in the case of Smt. Kiranben Y. Patel, have been taken into consideration for deciding the above appeals en masse.

The grounds of appeal raised by the assessee in lead case (in ITA No. 200/SRT/2020) are as follows:

“That the AO has earned in making addition of Rs.2,40,530/- towards capital gain as per Section 50-C.”

10.Succinct facts are that assessing officer made addition on account of capital gain under section 50C of the Act at Rs. 2,40,530/-. On appeal , ld CIT(A) the addition

ITA.200 & 201/SRT/2020/AY.2008-09 Kiranben Y. Patel & Manjulaben K. Patel was upheld by Ld. CIT(A) and dismissed the appeal. Further, aggrieved by the order of ld CIT(A), the assessee is in further appeal before us.

11.Learned Counsel for the assessee, at the outset submits that on similar and identical facts the Tribunal has deleted the addition in the case of assessee`s Co- owner therefore addition in the hands of the assessee should also be deleted. Thus, ld Counsel contended that the issue is squarely covered by the order of ld CIT(A) in appeal no ITBA APPEAL No. CIT(A),-1111442016-17 dated 21.08.2018, wherein it was held as follows: “DECISION: 6.1.1. I have considered the assessment order as well as the submissions of the appellant. The Grounds of appeal – ground No.1 pertains to the Ld. AO double taxed the amount u/s 50C hence arriving at the demand amount, which is wrong. The AO found that the appellant had sold a land on 29.03.2008 for Rs.45,50,00/- while the Stamp Valuation Authority had calculated the market value of the property at Rs.91,40,252/- and thus there was the difference of Rs.45,90,252/-.The case was reopened u/s 147 of the Act as the appellant had not filed the return of income. In response to the notice u/s 148 the appellant filed the return of income on 17.11.2015. The AO found that the land was referred to the DVO by the ITO Ward 2(3)(2) Surat in the case of the co-owner. The DVO had valued the FMV at Rs.13,52,680/- as against the declared value of Rs.26,08,740/-.The appellant made the addition of Rs.90,673/- on account of LTCG after adopting the value of land as taken by DVO and made the addition of Rs.2,40,530/- u/s 50C of the Act. The appellant submitted that the property was referred top the DO who valued the FMV @ of Rs.70/- per sq.mtr. as against the valuation of the same property shown by the appellant @ of rs.135 per sq.mtrs. The AO made the double addition by making LTCG of Rs.90,673/- and also proportionate gain on account of difference of Stamp Valuation Authority of Rs.2,40,530/-. 6.1.2. On the perusal of the details, it is observed that the appellant had sold property alongwith the co-owners for Rs.45,50,00/- as per the Sale deed while the

ITA.200 & 201/SRT/2020/AY.2008-09 Kiranben Y. Patel & Manjulaben K. Patel Stamp Duty Valuation Officer had valued the stamp duty Rs.91,40,252/- which was also accepted by the appellant and the had calculated the LTCG accordingly. The contention of the appellant is found to be correct and therefore the addition made by the AO on account of Rs.2,40,530/- is deleted and the ground of appeal is partly allowed.”

12.

Therefore, ld Counsel contended that since the Tribunal has deleted the addition in the case of assessee’s co-owner, therefore based on the similar and identical facts, the addition in the hands of the assessee may also be deleted. The ld Counsel also contended that in the hand of the assessee, there should not be different treatment, and for that Ld. Counsel relied on the decision of Co-ordinate Bench of ITAT, Ahmedabad in the case of Ambalal Somabhai (Kumbhar) Prajapati vs. ITO Ward- 7(1)(2) Ahmedabad in ITA No. 315/AHD/2016 for AY.2010-11, order dated 18.09.2018, wherein it was held as follows: “12. Two co-owners cannot be treated differently for the same transaction. Therefore, we are of the view that addition made by the AO in the hands of the assessee is not sustainable. We allow the appeal of the assessee partly and direct the AO to take taxable capital gain in the hands of the assessee at Rs.40,880/- equivalent to the one assessed in the hands of Shri Dashrathbhai Somabhai Prajapati, the other co-sharer. In view of the above discussion, appeal of the assessee is partly allowed.” 13. Therefore, we note that if the facts of the assessee`s case is identical and similar as mentioned in the assessee`s co-owner then addition should be deleted in the hands of the assessee and there should not be different treatment in the hands of the assessee. We note that order passed by the ld CIT(A) is an ex-parte order, as the assessee did not appear before the ld CIT(A) therefore lower authorities could not verify the assessee`s facts. Hence, for limited purpose, we are of the view that these two appeals should be remitted back to the file of the assessing officer for verification of facts. Therefore, we direct the Assessing Officer to verify the facts of the assessee’s case and if the Assessing Officer finds an identical and similar facts, as mentioned in the case of assesee`s co-owner, then Assessing Officer should delete addition. For statistical purposes, both the assessees` appeals are treated to be allowed.

ITA.200 & 201/SRT/2020/AY.2008-09 Kiranben Y. Patel & Manjulaben K. Patel 14.In the result, both the appeals filed by the assessees are allowed for statistical purposes.

Registry is directed to place one copy of this order in all appeals folder / case file(s).

Order is pronounced in the open court on 22/08/2022 by placing the result on the Notice Board as per Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963.

Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat �दनांक/ Date: 22/08/2022 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat

KIRANBEN YOGESHBHAI PATEL,SURAT vs. ITO WARD-2 (2)(2), SURAT