K.Nirmala , Chikkaballapur V. Income Tax Officer Ward-1 , Chikkaballapur

ITA 1946/BANG/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4166 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 05-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PALANI KUMAR
• Keywords: Opportunity of being heard; Non compliance; Condonation of delay
• Section: 147; 144

Judgement Text

PIN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH SMC-C, BANGALORE BEFORE SHRI A.K.GARODIA, ACCOUNANT MEMBER ITA NO. 1946(BANG) 2018 (ASSESSMENT YEAR : 2009 10) SMT. K. NIRMALA, APPELLANT W/O SRI G. KESHAVA REDDY, NANJAREDDY PALLI, GULURU HOBLI, BAGEPALLI TALUK, CHIKKABALLAPUR DISTRICT 562107. PAN. AUVPN4196R VS ITO WARD 1, RESPONDENT KOLAR. & ITA NO. 1947 (BANG) 2018 (ASSESSMENT YEAR : 2009 10) SMT. SARASWATHAMMA, APPELLANT W/O SRI D. N. SHIVARAMA REDDY, DEVERAGUDIPALLI VILLAGE, MALLASANDRA POST, BAGEPALLI TALUK, CHIKKABALLAPUR DISTRICT 562107. PAN. FDSPS0831K VS ITO WARD 1, RESPONDENT KOLAR. ASSESSEE BY : SHRI NARENDRA SHARMA, ADVOCATE REVENUE BY : SHRI PALANI KUMAR, ADDL. CIT DR DATE OF HEARING : 02-05-2019 DATE OF PRONOUNCEMENT : 10-05-2019 O R D E R PER A. K. GARODIA, A.M.: BOTH THESE APPEALS ARE FILED BY TWO DIFFERENT BUT CONNECTED ASSESSEES AND THESE ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF CIT (A) 4 & 7 RESPECTIVELY DATED 29.12.2017 & 04.12.2017. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS. 1946 & 1947(BANG)2018 2 2. BOTH THESE APPEALS WERE FILED AFTER DELAY. IN ITA NO. 1946/BANG/2018, THE DELAY IS OF 104 DAYS AND IN ITA NO. 1947/BANG/2018, THE DELAY IS OF 32 DAYS. BOTH THESE ASSESSEES HAVE FILED APPLICATION FOR CONDONATION OF DELAY ALONG WITH AFFIDAVIT. IT IS STATED THAT THE ASSESSEE HAD CONTACTED THE CHARTERED ACCOUNTANT IMMEDIATELY AFTER RECEIPT OF THE ORDER OF CIT (A) AND HE ADVISED TO CONTACT AFTER SOME TIME. THE ASSESSEE WAS NOT AWARE ABOUT THE TIME LIMIT FOR FILING APPEAL BEFORE THE TRIBUNAL AND THE CHARTERED ACCOUNTANT DID NOT POINT OUT THIS AND DID NOT ADVICE ABOUT FUTURE COURSE OF ACTION. IT IS THE MAIN SUBMISSION THAT THE DELAY IS CAUSED BY THE INACTION OF THE CHARTERED ACCOUNTANT AND HENCE, IN THE INTEREST OF JUSTICE, THE DELAY SHOULD BE CONDONED. RELIANCE IS PLACED ON THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHERS, 167 ITR 471. LEARNED DR OF THE REVENUE OPPOSED THE CONDONATION OF DELAY. 3. I HAVE CONSIDERED THE ARGUMENTS OF BOTH SIDES AND RESPECTFULLY FOLLOWING THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI AND OTHERS, (SUPRA), I CONDONE THE DELAY IN BOTH CASES. 4. SEVERAL GROUNDS ARE RAISED IN BOTH CASES BUT THE ONLY GRIEVANCE IN BOTH CASES IS ABOUT ADDITION MADE BY THE AO IN EACH CASE OF RS. 21,57,870/- AS LONG TERM CAPITAL GAIN ON SALE OF TWO PROPERTIES JOINTLY OWNED BY THESE TWO ASSESSEES ALONG WITH ONE MORE PERSON, EACH OF THESE THREE PERSONS HAVING 1/3 RD SHARE. EXCEPT GROUND NO. 5 (A) IN EACH YEAR ARE REJECTED AS NOT PRESSED AND I REPRODUCE IDENTICAL GROUND NO. 5 (A) WHICH IS TO BE DECIDED. THIS READS AS UNDER:- 5. BOTH SIDES WERE HEARD BUT IT IS SEEN THAT IN BOTH CASES, THE ASSESSMENT ORDER WAS PASSED BY THE AO U/S 144 R.W.S. 147 OF THE I. T. ACT AND IT IS ALSO NOTED THAT THE AO HAS NOT MENTIONED ANY DATE OF HEARING. THIS IS ALSO SEEN THAT IN THE BODY OF THE ASSESSMENT ORDER ALSO, THERE IS NO MENTION OF ANY ISSUE OF NOTICE FOR HEARING OR ABOUT ANY ADJOURNMENT APPLICATION OR ANY SUBMISSION OR ITA NOS. 1946 & 1947(BANG)2018 3 ANY NON COMPLIANCE BY THE ASSESSEE. HENCE, I FEEL IT PROPER TO RESTORE THE MATTER IN BOTH CASES TO THE AO FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEES. THE ASSESSEES ARE ALSO DIRECTED TO MAKE PROPER COMPLIANCE. IN VIEW OF THIS DECISION, I DO NOT MAKE ANY COMMENT ON MERIT. 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- (A.K. GARODIA) ACCOUNTANT MEMBER BANGALORE D A T E D : 10.05.2019 /MS/ COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A), BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER, AR, ITAT, BANGALORE