CHATURBHAI KALIDAS PARMAR,AHMEDABAD V. THE INCOME TAX OFFICER, WARD-3, GANDHIDHAM (BHUJ-1)

ITA 472/RJT/2024

AI Insights

The case involves Chaturbhai Kalidas Parmar, who appealed against the order passed by the CIT(A) at the National Faceless Appeal Centre, Delhi, concerning the assessment year 2014-15. The primary issues in the appeal included the ex-parte decision by the CIT(A), the legality of the reopening of the assessment under section 147, and the confirmation of a capital gain addition of Rs. 2,11,00,000. The ITAT noted procedural lapses, including the non-speaking nature of the CIT(A)'s order and inadequate notice to the assessee, leading to the decision to remand the case back to the AO for a fresh assessment.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 27280 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-11-2024
• Assessment Year: 2014-2015
• Appeal Filed On: 10-07-2024
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Assessee Lawyers: KUSHAL FOFARIA
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Cost of acquisition; Period of limitation; Reopening of assessment; Principle of natural justice; Time period of passing order
• Section: 147; 148; 271(1)(c); 13

Judgement Text

" Page | 1 ITA No.472/RJT/2024 Chaturbhai Kalidas Parmar CIN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकर अपील सं./ITA No.472/RJT/2024 (Ǔनधा[रण वष[ / Assessment Year: (2014-15) (Physical Hearing) Chaturbhai Kalidas Parmar 21, Gayatri Nagar Society, Opp. Mukti Dham, Sanand Ahmedabad, Gujarat -382110 Vs. ITO Ward -3 Ghandhidham Bhuj-1 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AMSPP1601N (Assessee) (Respondent) Assessee by : Shri Kushal Fofaria, AR Respondent by : Shri Abhimanyu Singh Yadav, Sr.- DR Date of Hearing : 07/11/2024 Date of Pronouncement : 13 /11/2024 आदेश / O R D E R PER DINESH MOHAN SINHA, AM: The appeal filed by the assessee, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [in short ‘NFAC/Ld. CIT(A)’], dated 27.12.2023, u/s 147 r.w.s 144 of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’), dated 28.03.2022 for Assessment Year 2014-15. 2. The assessee has raised following grounds of appeal: “1.The Ld. CIT(A) has erred in law and on facts of the case in deciding the appeal ex-parte. Page | 2 ITA No.472/RJT/2024 Chaturbhai Kalidas Parmar 2.The Ld. CIT(A) has erred in law and on facts of the case in dismissing the appeal without independently adjudicating the merits of the case as per Section 250(6) of the Act. 3.The Ld. CIT(A) has has erred in law and on facts of the case in upholding reopening of assessment u/s. 147 of the Act. Under the facts and circumstances of the case, the action of reopening is without jurisdiction and in not permissible either in law or on facts. 4.The Ld. CIT(A) has erred in law and on facts of the case in confirming the addition of Rs. 2,11,00,000/- as capital gain. 5.The Ld. CIT(A) has erred in law and on facts of the case in considering the entire receipts on alleged sale of immovable property as capital gain without allowing cost of acquisition therefrom. 6.Both the lower authorities have passed the orders without properly appreciating the facts and law in its proper perspective. 7.The Ld. CIT(A) has erred in law and on facts of the case in confirming action of the Ld. AO in levying interest u/s. 234A/B/C/D of the Act. 8.The Ld. CIT(A) has erred in law and on facts of the case in confirming action of the Ld. AO in initiating penalty proceedings u/s. 271(1)(c) of the Act. 9.The Ld. CIT(A) has erred in law and on facts of the case in confirming action of the Ld. AO in initiating penalty proceedings u/s. 271F of the Act.” 3. At the outset, the appeal is delayed by 136 days. Ld. AR has filed an affidavit and requested for condonation of delay the same are reproduced as follows: “1. The order of the learned Commissioner of Income-tax (Appeals) [\"CIT(A)\" for short] for Assessment Year 2014-15 was issued on 27.12.2023 and therefore, appeal before Your Honours was required to be filed on or before 25.02.2024. However, the appeal came to be filed on 10.07.2024 and thus, there is a delay of 136 days in filing appeal before Your Honours. I state that there is no intentional delay on my part, the genuine reasons for the said delay are explained as under: a) I am a senior citizen individual. I say and submit that I am not well read. b) An ex-parte assessment was framed in my case without serving of any notices on my residence. On coming to know about the assessment order, I met a local consultant and asked him to take appropriate remedy against the assessment order. As I had never filed a return of income before passing of the assessment order, I was not having any e-filing account on the income tax portal. The staff of the consultant created my e-filing account on the income tax portal and an appeal came to be filed before the CIT(A). As I was not aware about the use of email, the staff of the consultant created an email id \"[e-mail]\" and used such email id for creating my e-filing account and filing the appeal. c) Initially, I inquired about the status of the appeal with the consultant on two or three occasions after filing of the appeal, however I was informed by the consultant that the appeal proceedings takes longer time and was assured that the matter will be taken care of. However, even after passing a considerable period of time of more than a year, there was no update from the consultant. Thus, I personally visited the consultant to inquire about the matter. At this point of time, the consultant logged into my e-filing account to verify about the status of the appeal. To our utter surprise, the order of the CIT(A) was already passed ex-parte by the CIT(A) after Page | 3 ITA No.472/RJT/2024 Chaturbhai Kalidas Parmar issuance of two notices u/s. 250 of the Act on the email id \"[e-mail]\". The consultant informed me that he was unaware about the creation of such email id by his staff which led to passing of an ex-parte order. Due to such careless attitude and negligence on the part of my consultant, the appeal before the CIT(A) was decided ex-parte and even the limitation period for filing an appeal before Your Honours got expired by this time. Thereafter, I changed the consultant and asked him to take appropriate remedy against the order of CIT(A). Immediately thereafter, an appeal came to be filed before Your Honours. 2. I say and submit that under such circumstances there is a delay in filing the Appeal before Your Honours. However, I respectfully submit that there is a prima facie good case in my favour. Hence, it is respectfully prayed to Your Honours that looking at the reasons as stated, I request Your Honours to kindly condone the delay caused in filing Appeal before Your Honours in the interest of justice and the appeal may be heard and decided on merits to protect the rights and interest of the deponent.” 4. Ld. AR submitted that the cause of delay the tax consultant who was engaged for pursuing the appeal has not kept due attention to the matter and the appeal disposed of ex-parte. On the contrary Ld. DR has submitted that due to such careless attitude and negligence on the part of the consultant the Ld. CIT(A) has passed ex-parte order and Ld. ITO has also passed ex- parte order u/s 144 r.w.s 147 of the Act. 5. We have heard both the parties and we note that it is because of the mistake of the tax consultant the appeal was not pursued before the Ld. CIT(A). The appellant should not suffer because of mistake committed by the Ld. Counsel. We find that there is a sufficient cause to condoned the delay, therefore, we condoned the delay and admitted the appeal of the assessee for hearing. 6. Brief facts of the case that the assessee has not file the return of income for A.Y.2014-15. The appellant received an order u/s 147 /144 r.ws. 144B of the Act. During the year the assessee sold immovable property and the documents mentioned that there is cash payment of Rs.4,00,000/- and cheque payment of Rs.3,00,000/- was received. Three cash receipts have also been found showing payment from the same property. The case was Page | 4 ITA No.472/RJT/2024 Chaturbhai Kalidas Parmar reopened on this issue alone and notice u/s 148 of the Act was issued to the assessee on 31.03.2021 that the assessment for A.Y.2014-15 was framed by Ld. AO considering total consideration of Rs.2,11,00,000/- as capital gain. The assessment order framed on 28.03.2022. The assessee filed an appeal before the CIT(A) notice issue by the Ld. CIT(A) remain un- complied with finding of the Ld. CIT(A) that the appellant is not interested in the appeal. 7. The appeal filed by the assessee stand dismissed on 27.12.2023. The assessee is in appeal before us against the order passed by the Ld. CIT(A) 8. Ld. AR submitted that the notice issued by the Ld. CIT(A) was not complied with due to mistake of the tax consultant and prayed for one more opportunity to present the case before the authorities. 8. On the contrary the Ld. DR submitted that since the assessment order as well as appellate order both are ex-parte the assessee is negligent in perusing the case before the Income Tax Authority. The assessee should be penalized for negligence behavior. 9.We have heard both the parties and perused all the material available on record. We note that the Ld. CIT(A) has noted that notice issued to the assessee for hearing of the case but the order is silent on the service of notice upon the assessee. We further note that the impugned order of the Ld. CIT(A) is a non-speaking order. We do not wish to make any comment on the merits of the grounds raised by the assessee. We further note that the CIT(A) has not decided the issue in respect of the grounds raised by the assessee in memo of appeal as per the mandate of the provision of section 250(6) of the Act. We are of the view that one opportunity should be given Page | 5 ITA No.472/RJT/2024 Chaturbhai Kalidas Parmar to the assessee to present his case before the Ld.AO/ZAO. A cost of Rs.10,000/- is imposed on the assessee for non-compliance attitude which is to be deposited with Prime Minister Relief Fund. We note that it is settled law that principle of natural justice and fair play required that effected party should be granted sufficient opportunity of being heard to context this case. Therefore, we deem it fit and proper to set aside the order of the CIT(A) and remit the mater back to the file of Ld. AO to adjudicate the issue afresh on merits after giving reasonable opportunity of being heard to the appellant. The AO shall allow one more opportunity of being heard to the assessee. The assessee is also directed to furnish all the evidence before the AO as when ask for. 10. In the result, the appeal of the assessee is Allowed for statistical purposes. Order is pronounced in the open court on 13/11/2024 Sd/- Sd/- (Dr. A.L. SAINI) (DINESH MOHAN SINHA) ACCOUNTANT MEMBER JUDICIAL MEMBER Patel, Sr. PS Rajkot True Copy Ǒदनांक/ Date: 13/11/2024 Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr. CIT 5. DR/AR, ITAT, Rajkot 6. Guard File By Order Assistant Registrar/Sr. PS/PS ITAT, Rajkot Page | 6 ITA No.472/RJT/2024 Chaturbhai Kalidas Parmar Date Initial 1. Draft dictated on (dictation sheet is enclosed with main file.) 12.11.24 } PS 2. Draft placed before author 12.11.24 PS 3. Draft proposed & placed before the second member 4. Draft discussed/approved by Second Member. 5. Approved Draft comes to the Sr.PS/PS 6. Kept for pronouncement on 7. File sent to the Bench Clerk 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk. 10. Date of dispatch of Order. 11. Draft dictation sheets are attached PS "