Pratibhaben Ashokkumar Dave, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-3(1), RAJKOT-GUJARAT

ITA 20/RJT/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0244 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 24-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE SHRI RAJPAL YADAV, HONBLE JUDICIAL MEMBER AND SHRI WASEEM AHMED HONBLE ACCOUNTANT MEMBER ITA NO.20/RJT/2017 / ASSTT. YEAR: 2007-08 PRATIBHABEN ASHOKUMAR DAVE SHIV URJA, 12-BHAKTINAGAR SOCIETY DHEBAR ROAD RAJKOT. VS. THE ITO, WARD - 3(1) RAJKOT. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : WRITTEN SUBMISSIONS REVENUE BY : SHRI ANIL KUMAR DAS, DR / DATE OF HEARING : 20/09/2019 / DATE OF PRONOUNCEMENT: 01/10/2019 )*+/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A)-2, RAJKOT DATED 11.11.2016 PASSED FOR THE ASSTT.YEAR 2 007-08. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE T IME OF HEARING. THEREFORE, WE PROCEED TO DISPOSE OF APPEAL EX PARTE QUA ASSESSEE-APPELLANT AFTER HEARING THE LD.DR AND CONSIDERING THE MATERIA L AVAILABLE ON RECORD. 3. GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH RULE 8 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES , 1963 - THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NATURE. IN BRIEF , GRIEVANCE OF THE ASSESSEE IS ON TWO ISSUES, VIZ. THAT (A) THE LD.CIT(A) HAS ERRE D IN CONFIRMING ADDITION OF ITA NO.20/RJT/2017 2 RS.1,77,636/- AND RS.287/- ON ACCOUNT OF LONG TERM CAPITAL GAIN, AND (B) THE LD.CIT(A) HAS ERRED IN NOT CONDONING THE DELAY IN F ILING FIRST APPEAL AND DISMISSING THE APPEAL IN LIMINE WITHOUT CONSIDERING THE ISSUE ON MERIT. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A TEACHER AND DERIVING INCOME SALARY. RETURN OF INCOME WAS FILED ON19.7.2 007 DECLARING TOTAL INCOME OF RS.1,27,780/-. SUBSEQUENTLY, IT WAS NOTI CED BY THE AO THAT THE ASSESSEE HAS SOLD PROPERTY FOR SALE CONSIDERATION O F RS.3,50,000/- ON 16.9.2006 ON WHICH STAMP DUTY VALUATION AUTHORITY H AS VALUED THE PROPERTY AT RS,5,00,192/-. THE ASSESSEE DID NOT DISCLOSE ANY C APITAL GAIN ARISEN FROM SUCH SALES IN THE RETURN. THEREFORE, THE AO PRESUMED TH AT CAPITAL GAIN ON SUCH TRANSACTION HAS ESCAPED ASSESSMENT, AND REOPENED AS SESSMENT UNDER SECTION 148 OF THE INCOME TAX ACT. AS CAN BE NOTICED FROM THE ASSESSMENT ORDER, WHILE CALCULATING CAPITAL GAIN ON SUCH SALE, THE LD .AO HAS RECORDED THAT THE ASSESSEE HAS AGREED TO THE TAXATION OF THE CAPITAL GAIN. ACCORDINGLY, THE LD.AO WORKED OUT CAPITAL GAIN OF RS.1,77,636/- AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ASSESSEE FILED AN APPEAL BEFORE T HE LD.CIT(A) WHICH WAS LATE BY 196 DAYS. THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT DELAY IN FILING OF APPEAL NEITHER EXPLA INED NOR ANY CONDONATION IS SOUGHT FOR. AGGRIEVED BY THE ORDER OF THE LD.CIT(A ) ASSESSEE IS BEFORE THE TRIBUNAL. 5. WE SHALL FIRST TAKE-UP THE ISSUE OF CONDONATION OF DELAY IN FILING APPEAL BEFORE THE LD.CIT(A). ASSESSEE HAS FILED APPEAL BE FORE FIRST APPELLATE AUTHORITY WHICH WAS LATE BY 196 DAYS. BEFORE US, A SSESSEE HAS FILED WRITTEN SUBMISSIONS. EXCEPT RELYING ON SOME OF THE JUDGMEN TS ON THE ISSUE OF CONDONATION OF DELAY, THERE IS NO VALID PLEADINGS T O ADJUDICATE THE ISSUE NON- CONDONATION OF DELAY BY THE LD.CIT(A). EVEN IN THE FORM NO.35 SUBMITTED BEFORE THE LD.CIT(A) THERE IS NO MENTION ABOUT COND ONATION OF DELAY SOUGHT ITA NO.20/RJT/2017 3 BY THE ASSESSEE, NOR ANY APPLICATION FOR CONDONATIO N HAS BEEN FILED. THEREFORE, THE LD.CIT(A) HAS LEFT WITH NO OPTION BU T TO REJECT THE APPEAL. WE FIND THAT EXPRESSION SUFFICIENT CAUSE EMPLOYED IN SUB-SECTI ON 3 OF SECTION 249 OF INCOME TAX ACT PROVIDES POWERS TO TH E LD.COMMISSIONER TO CONDONE THE DELAY IN FILING THE APPEAL BEFORE TH E COMMISSIONER IF HE IS SATISFIED THAT THE APPELLANT HAD SUFFICIENT CAUS E FOR NOT PRESENTING IT WITHIN THAT PERIOD . DE HORES SUFFICIENT EXPLANATION, AUTHORITY CANNOT SIMPLY CONDONE THE DELAY, OTHERWISE PROVISION OF SECTION 2 49(3) WOULD HAVE NO RELEVANCY. IN THE INSTANT CASE, THERE IS NO EXPLAN ATION BEFORE THE FIRST APPELLATE AUTHORITY FOR CONDONING THE DELAY. THERE FORE, IN ABSENCE OF DELAY BEING EXPLAINED BY THE ASSESSEE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) IN DISMISSING THE APPEAL OF THE ASSES SEE ON THE GROUND OF LIMITATION. CONSEQUENTLY, APPEAL OF THE ASSESSEE B EFORE US STANDS DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE COURT ON 1 ST OCTOBER, 2019 AT AHMEDABAD. SD/- SD/- (WASEEM AHMED ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER