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Income Tax Appellate Tribunal, LUCKNOW BENCH “SMC”, LUCKNOW
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “SMC”, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER Mr. Aditya Kumar, Vs. Income Tax Officer-1(1), 1, Anora, Amausi, Lucknow Lucknow-226008 PAN BFAPOK 7298L (Appellant) (Respondent) Appellant by Shri Siddharth Kohli, Advocate Respondent by Shri Sanjeev Krishna Sharma, Addl. CIT(DR) Date of hearing 16/05/2024 Date of pronouncement 28/05/2024 O R D E R
This appeal is preferred by the assessee against the order dated 12.10.2023 passed by the National Faceless Appeal Centre (NFAC), Delhi for Assessment Year (AY) 2017-18.
The brief facts of the case are that the assessee had deposited cash to the tune of Rs.10.00 lacs in Union Bank, Daliganj, Lucknow during the demonetization period i.e. between 08.11.2016 and 30.12.2016. The Assessing Officer issued a letter dated 13.03.2018 to the assessee to submit his ITR through e- portal but no ITR had been filed. Thereafter, another notice u/s. 142(1)(i) of the Act was issued requiring the assessee to submit correct return of his income for the Assessment Year 2017-18. However, since no reply was forthcoming from the part of the assessee, the AO proceeded to invoke the provisions of Section 144 of the Income Tax Act, 1961 (hereinafter called the ‘Act’) and completed the assessment at an income of Rs.46,34,500/-.
Aggrieved, the assessee preferred an appeal before the NFAC. However, the appeal before the NFAC came to be dismissed on account of non-compliance by the assessee.
Now, the assessee has approached this Tribunal challenging the action of the NFAC by raising the following grounds of appeal:
“1. That the A.O./ Commissioner (Appeal) erred in law as well as on facts in assessing the capital gains u/s 69 A instead of Section 45 and wrongly applied the provisions of Section 115BBE thereby making an addition of Rs. 10,00,000/- per para 10 of the assessment order which is contrary to law, illegal and arbitrary considering it a deposit under the demonetization which is bad in law and has no legs to stand being Null & void. The amount in fact represents 'sale consideration' and not an 'unexplained money.
2. That the part of sale consideration of Rs. 381676/- per Para 11 has again been wrongly termed as cash deposit deposited not during the demonetization which is illegal leading to applicability of the provisions of Section 115BBE which is not applicable in the prevailing circumstances, accordingly the amount of Rs. 381676/- being part of sales consideration cannot be assessed under the garb of cash credits/ unexplained money ignoring the sale deeds effected during the financial year 2016-17.
3. That the A.O. grossly erred in adding back Rs.3252800/- u/s 50C and at the same time resorting to application of provisions of Section 115BBE thus confusing the entire transaction which in facts was simply a clear cut case of 'Capital Gains and ought to has been assessed u/s 45 of the Act thus the observation and conclusion drawn in Para 12 of the assessment order and arbitrary, illegal and based upon presumption and surmises ignoring the facts that the sale deeds executed on 04-10-2016 and accordingly capital gains arising out of the demonetization period viz. 08-11-2016 to 30-12-2016. Accordingly, the capital gains ought to be assessed as on 04-10-2016 under the transfer of property Act and case fully be assessed entirely under the heads LTCG applicable in the instant case. Hence the entire assessment and penalty deserved to be quashed being ab-initio null and void.
4. That the property sold was in joint name and cannot be completely assessed under him. 5. That the A.O./Commissioner (Appeal) erred in law as well as on facts in not giving the benefits of cost of acquisition which ought to have been given taking into consideration the matter relating to capital gain. 6. That the penalty imposed u/s 69A/115BBE is not imposable under the facts and circumstances of the case. 7. That the appellant craves to leave to add, alter and delete any ground or grounds at the time of hearing of the appeal petition.”
At the outset, it was submitted by the ld. AR that the appeal filed by the assessee was barred by limitation by 36 days. The Ld. AR submitted that the assessee has submitted an application for condonation of delay in filing the appeal stating therein that the appeal could not be filed within the time stipulated for the reason of the marriage of the daughter of his counsel. It is further submitted that the counsel remained out of office till the first week of January, 2024 and, therefore, the said appeal could not be filed. He prayed that the delay caused in filing the appeal was not deliberate and was beyond the control of the assessee and therefore, the same may be condoned and the appeal be heard on merits.
Per contra, the ld. Senior Departmental Representative had no objection to the condonation of delay.
I have duly considered the issue of condonation of delay and looking into the facts and circumstances of the case and specially noting that the bona fide of the assessee in this regard is beyond doubt, I condone the delay of 36 days and admit the appeal for the purpose of regular hearing.
The Ld. A.R. prayed that the appeal may be restored to the Office of the Assessing Officer (AO) for the purposes of adjudication on merits.
The ld. D.R. had no objection to the restoration of appeal as requested by the ld. A.R..
I have heard both the parties and have also perused the material on record. It is evident that there was complete non compliance on the part of the assessee during the course of first appellate proceedings. However, looking into the facts of this case, I am of the considered view that the assessee deserves one more opportunity to present his case and, therefore, in the interest of substantial justice, I restore this file to the Office of the Assessing Officer (AO) with the direction to provide one more opportunity to the assessee to present his case and I also caution the assessee to fully comply with the directions of the AO in the set-aside proceedings when called upon to do so, failing which, the AO shall be at complete liberty to pass the order in accordance with law, based on the material available on record even if it is ex- parte qua the assessee.
In the result, the appeal of the assessee stands allowed for statistical purposes. (Order pronounced in the open court on 28 /05/2024)