Jayashree S, Bangalore V. Deputy Commissioner of Income Tax (CPC), Bangalore

ITA 1127/BANG/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 8725 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 20-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARUPPUSAMY S. R.
• Keywords: Opportunity of being heard; Condonation of delay; Revised return; Set aside; Capital Gains
• Section: 143(1); 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC - A BENCH : BANGALORE BEFORE SHRI JASON P BOAZ , ACCOUNTANT MEMBER ITA NO. 1 1 2 7 /BANG/201 9 ASSESSMENT YEAR : 20 1 5 - 1 6 SMT. JAYASHREE S, NO.147, 30 TH CROSS, BANASHANKARI 2 ND STAGE, BANGALORE-560 070. PAN : A AKPJ 2584 J VS. DEPUTY COMMISSIONER OF INCOME TAX (CPC), INCOME TAX OFFICE, WARD 7(2)(4), BANGALORE. APPELLANT RESPONDENT ASSESSEE BY : SMT. SUMAN LUNKAR, CA REVENUE BY : SHRI. KARUPPUSAMY S. R., ADDL. CIT DATE OF HEARING : 1 3 . 0 6 .201 9 DATE OF PRONOUNCEMENT : 12 . 0 7 .201 9 O R D E R PER JASON P. BOAZ, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE EX-PARTE ORDER OF CIT(A)-7, BANGALORE, DATED 24.04.2019 FOR ASSESSMENT YEAR 2015-16. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THE IMPUGNED INTIMATION BEING BAD IN LAW WITHOUT JURISDICTION AND NOT IN ACCORDANCE WITH ANY OF THE PROVISION OF LAW IS LIABLE TO BE QUASHED. 2. IN ANY CASE AND WITHOUT PREJUDICE, THE LEARNED CIT(A) HAS ERRED IN NOT CONDONING THE DELAY FOR FILING OF APPEAL AND DISMISSING THE APPEAL FILED BY THE APPELLANT HOLDING THAT THE DELAY IS NOTHING BUT NEGLIGENCE AND INACTION OF THE APPELLANT AND THERE EXISTS NO SUFFICIENT OR GOOD REASON FOR CONDONING THE DELAY. ON PROPER APPRECIATION OF FACTS AND THE LAW APPLICABLE, THE APPELLANT WAS ITA NO. 1127/BANG/2019 PAGE 2 OF 6 PREVENTED FROM REASONABLE AND SUFFICIENT CAUSE FROM FILING THE APPEAL WITH IN PRESCRIBED TIME AND SUCH DELAY IN FILING THE APPEAL OUGHT TO HAVE BEEN CONDONED. 3. IN ANY CASE AND WITHOUT PREJUDICE, THE LEARNED CIT(A) HAS ERRED IN DISMISSING THE APPEAL WITHOUT DISPOSING THE CASE ON MERITS OF THE CASE. THE ACTION OF THE CIT(A) IS CONTRARY TO LAW APPLICABLE IS TO BE NEGATED AND THE ORDER PASSED BY CIT(A) IS TO BE QUASHED, 4. IN ANY CASE AND WITHOUT FURTHER PREJUDICE, THE LEARNED DCIT (CPC) HAS ERRED IN ASSESSING THE SHORT TERM CAPITAL GAINS AT RS. 7,85,608/- AS AGAINST RS. 4,68,620/- RETURNED BY THE APPELLANT. THE SHORT TERM CAPITAL GAIN AS ASSESSED BY DCIT (CPC) TO THE EXTENT OF RS. 3,16,988/- AMOUNTS TO DOUBLE ADDITION AND SAME IS TO BE DELETED IN ENTIRETY. 5. IN ANY CASE COMPUTATION OF TAX ON SUCH SHORT TERM CAPITAL GAIN IS ERRONEOUS AND EXCESSIVE. 6. THE APPELLANT DENIES THE LIABILITY TO PAY INTEREST U/S 234A, 2348 AND 234C OF THE ACT. THE INTEREST HAVING BEEN LEVIED ERRONEOUSLY IS TO BE DELETED. 7. IN VIEW OF THE ABOVE AND ON OTHER GROUNDS TO BE ADDUCED AT THE TIME OF HEARING, IT IS REQUESTED THAT THE INTIMATION AS PASSED BE QUASHED OR AT LEAST, THE DELAY IN FILING THE APPEAL BEFORE THE CIT(A) BE CONDONED, THE ADDITION OF SHORT TERM CAPITAL GAIN BE DELETED AND INTEREST LEVIED BE ALSO DELETED. 3. GROUND NOS.2 AND 3 NON CONDONATION OF DELAY IN FILING APPEAL BEFORE CIT(A). 3.1 AT THE OUTSET, THE LEARNED AR FOR THE ASSESSEE SUBMITTED THAT THERE WAS A DELAY OF 608 DAYS IN FILING THE APPEAL BEFORE THE CIT(A)-7, BANGALORE. IT IS SUBMITTED THAT A PETITION FOR CONDONATION OF DELAY DATED 03.05.2018 WAS FILED BY THE ASSESSEE ALONG WITH THE APPEAL, PRAYING THAT THE DELAY BE CONDONED IN KEEPING WITH THE PRINCIPLES LAID DOWN BY THE HONBLE APEX COURT IN MST KATIJI AND OTHERS (1987) 167 ITR 471 (SC) AND THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. ISRO SATELLITE CENTRE (2013) 263 ITR 549 (KAR). THE REASONS FOR DELAY IN FILING THIS APPEAL HAVE BEEN ITA NO. 1127/BANG/2019 PAGE 3 OF 6 EXPLAINED BEFORE THE CIT(A) IN THE PETITION AT PARAS 1 TO 9 THEREOF, WHICH ARE AS UNDER:- ITA NO. 1127/BANG/2019 PAGE 4 OF 6 3.2 THE LEARNED DR FOR REVENUE OPPOSED THE ASSESSEES PLEA FOR CONDONATION OF DELAY. 3.3 I HAVE HEARD AND CONSIDERED THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD IN RESPECT OF THE MATTER OF NON-CONDONATION OF DELAY OF 608 DAYS IN FILING THE APPEAL BEFORE THE CIT(A)-7, BANGALORE. IT IS APPARENT THAT THE CIT(A) HAS NOT ADJUDICATED THE ASSESSEES APPEAL ON MERITS, BUT DISMISSED IT, IN LIMINE, BY NOT CONDONING THE DELAY IN FILING THE APPEAL. THE ULTIMATE OBJECT OF ASSESSMENT PROCEEDINGS IS THAT THE TRUE AND CORRECT INCOME OF THE ASSESSEE BE BROUGHT TO TAX. IN THE CASE ON HAND, THE INTIMATION PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) BY CPC DATED 03.08.2016 FOR ASSESSMENT YEAR 2015-16 HAS RESULTED IN DEMAND OF RS.1,23,990/- BEING RAISED; WITH WHICH THE ASSESSEE IS AGGRIEVED DUE TO THE ALLEGED WRONG CONSIDERATION OF CAPITAL GAINS AT RS.7,85,608/- AS AGAINST RS.4,08,620/- RETURNED BY THE ASSESSEE IN THE RETURN OF INCOME. ON RECEIPT THEREOF, THE ASSESSEE FILED A RECTIFICATION APPLICATION ON 03.01.2017 WHICH WAS REJECTED ON 20.02.2007. THE ASSESSEE ALSO FILED A REVISED RETURN OF INCOME ON 08.03.2017. IN THE ABOVE FACTUAL SCENARIO, IT IS VERY UNLIKELY THAT THE ASSESSEE WOULD HAVE DELIBERATELY OR INTENTIONALLY FILED THE APPEAL FOR ASSESSMENT YEAR 2015-16 BELATEDLY. TAKING INTO ACCOUNT THE PRINCIPLES LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF MST KATIJI AND OTHERS (SUPRA), WHEREIN THE HONBLE APEX COURT LAID DOWN THE PRINCIPLES FOR DEALING WITH MATTERS RELATING TO CONDONATION OF DELAY, THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF ISRO SATELLITE CENTRE (SUPRA) AND THE REASONS THE ASSESSEE HAS LAID OUT IN ITS PETITION FOR CONDONATION OF DELAY (SUPRA), I AM OF THE VIEW THAT THE ASSESSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE FROM FILING THE APPEAL FOR ASSESSMENT YEAR 2015-16 ON TIME BEFORE THE CIT(A)-7, ITA NO. 1127/BANG/2019 PAGE 5 OF 6 BANGALORE. IN THIS VIEW OF THE MATTER AND RESPECTFULLY FOLLOWING THE PRINCIPLES LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF MST KATIJI AND OTHERS (SUPRA), I CONDONE THE DELAY OF 608 DAYS BY THE ASSESSEE IN FILING THE APPEAL BEFORE THE CIT(A). SINCE IT IS EVIDENT THAT THE ASSESSEES APPEAL HAS BEEN DISMISSED BY THE CIT(A) ONLY ON TECHNICAL GROUNDS; BY NON-CONDONATION OF DELAY IN FILING THE APPEAL; AND NOT ADJUDICATED THE MERITS OF THE ISSUES RAISED IN THE APPEAL BEFORE HIM, THE IMPUGNED ORDER OF CIT(A)-7, BANGALORE DATED 24.04.2019 FOR ASSESSMENT YEAR 2015-16 IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE CIT(A) FOR ADJUDICATION ON MERITS. NEEDLESS TO ADD, THE CIT(A) SHALL AFFORD THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FILE SUBMISSIONS / DETAILS REQUIRED WHICH SHALL BE DULY CONSIDERED BEFORE DECIDING THE APPEAL. IT IS ACCORDINGLY ORDERED. CONSEQUENTLY, THE OTHER GROUNDS RAISED ON MERITS IN THIS APPEAL (SUPRA) ARE NOT REQUIRED TO BE ADJUDICATED AT THIS STAGE. 4. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2015-16 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH DAY OF JULY, 2019. SD/- SD / - SD/ - (N. V. VASUDEVAN) VICE PRESIDENT (JASON P BOAZ) ACCOUNTANT MEMBER BANGALORE. DATED: 12 TH JULY, 2019. /NS/* ITA NO. 1127/BANG/2019 PAGE 6 OF 6 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.