KAWAL SINGH (L/H of LATE SHREE CHAND ), Gurgaon V. ITO WARD - 4(2), Gurgaon

ITA 132/DEL/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5182 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2012-2013
• Appeal Filed On: 23-02-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Capital asset; Principle of natural justice; Condonation of delay
• Section: 54B; 234B; 147

Judgement Text

1 ITA NO. 132/DEL/2021 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: G NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL ME MBER AND SH. PRASHANT MAHARISHI, ACCOUN TANT MEMBER I.T.A. NO. 132/DEL/202 1 (A.Y 2012-13) (THROUGH VIDEO CON FERENCING) KAWAL SINGH (L/H OF LATE SHREE CHAND), GURGAON C/O. RRA TAX INDIA, D-28, SOUTH EXTENSION PART-1, NEW DELHI BENPC7845D (APPELLANT) VS ITO WARD-4(2) GURGAON (RESPONDENT) ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 09/09/2019 PASSED BY CIT(A)-1, GURGAON FOR ASSESSMENT YEAR 20 12-13. 2. THE GROUNDS OF APPEAL ARE AS UNDER: 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF AO IN REOPENING THE ASSESSMENT U/S 147 AND THAT TOO WHEN STATUTORY CONDITIONS U/S 147 TO 151 WERE NOT COMPLIED WITH. 2. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, AC TION OF LD. CIT(A) IN APPELLANT BY SH. SUMIT LAL CHANDANI, ADV RESPONDENT BY SH. PRAKASH DUEBY, SR. DR DATE OF HEARING 15.09.2021 DATE OF PRONOUNCEMENT 27.09.2021 2 ITA NO. 132/DEL/2021 CONFIRMING THE ACTION OF LD. AO IN REOPENING THE AS SESSMENT U/S 147, IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF AO IN MAKING AN ADDITION OF RS.22,80,19,359/- ON ACCOUNT OF ALLEGED LONG TERM CAPITAL GAIN, MORE SO WHEN THE LAND SOLD IS IN THE NATURE O F AGRICULTURAL AND NOT COVERED UNDER THE DEFINITION OF CAPITAL ASSET AND T HE IMPUGNED ADDITION HAS BEEN MADE BY RECORDING INCORRECT FACTS AND FIND INGS AND WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 4. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, AC TION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MAKING AN ADDITI ON OF RS.22,80,19,359/- ON ACCOUNT OF ALLEGED LONG TERM C APITAL GAIN, IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE SAME IS NOT SUSTAINABLE ON VARIOUS LEGAL AND FACTUAL GROUND S. 5. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACT ION OF LD. AO IN NOT ALLOWING THE BENEFIT THE EXEMPTION U/S 54B AS CLAIM ED BY THE ASSESSEE AND THAT TOO BY RECORDING INCORRECT FACTS AND FINDI NGS AND WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 6. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACT ION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN NOT ALLOWING THE BENEFIT THE EXEMPTION U/S 54B, IS BAD IN LAW AND AGAINST THE FACTS AND CI RCUMSTANCES OF THE CASE. 7. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN NOT REVERSING THE ACTION OF LD. AO IN 3 ITA NO. 132/DEL/2021 CHARGING INTEREST U/S 234A, 234B AND 234C OF INCOME TAX ACT, 1961. 3. DURING THE HEARING, THE LD. AR SUBMITTED THAT TH E APPEAL IS FILED AFTER STATUTORY LIMIT. THUS, THERE IS A DELAY OF 437 DAY S IN FILING THE APPEAL. THE LD. AR FURTHER SUBMITTED THAT DUE TO THE REASONS OF DEL AY IN FILING APPEAL, DECLARATION FILED UNDER THE DIRECT TAX VIVAD SE VI SHWAS SCHEME ACT, 2020 OF THE AFORESAID APPEAL WAS REJECTED AND THEREFORE, TH E ASSESSEE SOUGHT EARLY HEARING FOR DECIDING THE APPLICATION FOR CONDONATIO N OF DELAY IN FILING THE APPEAL. THE LD. AR PRAYED THAT APPEAL MAY ADJOURN AND THE DELAY IN FILING OF THE APPEAL MAY BE CONDONED. THE REASONS SET OUT IN THE APPLICATION FOR CONDONATION OF DELAY IS THAT THE ORDER OF THE CIT(A ) WAS COMMUNICATED TO THE ASSESSEE ON 15/10/2019 AND THE TIME LIMIT TO FILE A PPEAL AGAINST THE SAME EXPIRED ON 13/12/2019. THE ASSESSEE FIELD APPEAL O N 23/2/2021 WHICH IS DELAYED 437 DAYS. THE LD. AR FURTHER SUBMITTED THA T W.E.F FROM MARCH, 2020 THERE WAS A GUIDELINE OF THE HON'BLE SUPREME COURT IN RESPECT OF LOCKDOWN RELATED TO GLOBAL PANDEMIC (VOVID-19). THUS, THE D ELAY WAS BEYOND THE CONTROL OF ASSESSEE AFTER MARCH, 2020. THE ASSESSEE I.E. LA TE SHRI CHAN WAS AN AGRICULTURIST AND WAS NOT WELL VERSED THAT THE LA W ESPECIALLY INCOME TAX ACT. THE LEGAL HEIR OF THE ASSESSEE RECEIVED ORDER DATED 9/9/2019 OF THE CIT(A) ON 15/12/2019 AND SINCE THERE WERE TWO PARALLEL CASES PERTAINING TO LATE SHRI CHAN WHICH WERE GOING ON SIMULTANEOUSLY THE LEGAL H EIR OF THE ASSESSEE HAS UNINTENTIONALLY MEANS DUE DATE OF FILING THE DELAY AND WAS UNAWARE OF ITS LEGAL COMPLICATIONS. THE LEGAL HEIR OF THE ASSESSEE HAS OPTED FOR DIRECT TAX VIVAD SE VISHWASH SCHEME ACT, 2020 BUT WAS REJECTED ONLY ON THE GROUND THAT THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL WAS NOT CONDONED. 4. BEING AGGRIEVED BY THE PENALTY ORDER, THE ASSESS EE FILED APPEAL BEFORE THE CIT(A). THE CIT (A) DISMISSED THE APPEAL OF THE AS SESSEE. 4 ITA NO. 132/DEL/2021 5. THE LD. DR SUBMITTED THAT THE ASSESSEE RECEIVED THE ORDER DATED 9/9/ 2019 PASSED BY THE CIT(A) ON 15/12/2019 AND NOT SE T OUT ANY COGENT REASONS FOR DELAY. THEREFORE, DELAY IN FILING OF APPEAL SH OULD NOT BE CONDONED. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE DELAY OF 437 DAYS HAS BEEN PROPERLY E XPLAINED BY THE ASSESSEE DURING THE COURSE OF HEARING AS THERE WAS A GLOBAL PANDEMIC AFTER MARCH, 2020. THE DELAY IS CONDONED. SINCE, THE ASSESSEE HAS GIVE N UNDERTAKING THAT THE ASSESSEE WILL FILE FRESH APPLICATION UNDER VIVAD S E VISHWAS SCHEME, WE ARE HEREBY DISMISSING THIS APPEAL WITH THE LIBERTY TO T HE ASSESSEE THAT IF THE SAME IS REJECTED THEN THE ASSESSEE WILL REVIVE THIS APPE AL. HENCE, THE APPEAL OF THE ASSESSEE IS DISMISSED. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF SEPTEMBER, 2021 SD/- SD/- (PRASHANT MAHARISHI) (SUCH ITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27/09/2021 R. NAHEED * COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 132/DEL/2021