Shri Kishorbhai Laxmanbhai Anaghan, Surat V. Income Tax Officer, Ward - 3(3)(3), Surat

ITA 241/SRT/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3267 (ITAT-SURAT)
• Duration Of Justice: 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-03-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 12-04-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Keywords: Cost of acquisition; Condonation of delay; TDS; Set aside
• Section: 148; 194C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No. 241/SRT/2023 for AY: 2012-13 (Physical hearing) Kishorbhai Laxmanbhai Anaghan, 2, Eleven Gala, Bhat Ni Wadi, Varachha Road, Surat – 395006, Gujarat PAN : ADDPA2377C Vs The ITO, Ward – 3(3)(3), Surat APPELLANT RESPONDEDNT Appellant by Shri P.M. Jagasheth, CA Respondent by Shri Ravi Kant Gupta, CIT-DR Date of Institution 13/04/2023 Date of hearing 15/03/2024 Date of pronouncement 26/03/2024 Order under Section 254(1) of Income tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 11.11.2022 for Assessment Year (AY) 2012- 13. The assessee has raised following grounds of appeal: “1. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in re-opening the assessment u/s. 147 of the Act and notice u/s. 148 of the Act was issued. 2. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer has erred in making addition of Rs.4,12,50,000/- on account of long term capital gain on sale of land u/s. 45 of the Income Tax Act and not allowing deduction claimed. 3. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer has erred in making addition of Rs.29,465/- on account of TDS deducted u/s. 194C of the Act as the assessee has not claimed any TDS and even not shown any income except interest and remuneration from the partnership firm in his computation, which is treated as alleged undisclosed income of the Assessee. ITA No.241/SRT/2023/AY.2012-13 Kishorbhai Laxmanbhai Anagha 2 4. On the facts and in the circumstances of the case as well as law on the subject, the learned Commissioner of the Income Tax (Appeals) has not offered ample opportunities to hear the case and passed ex-parte order, hence the case may please be set aside and restored back to the CIT(A) or A.O. 5. It is therefore prayed that the above addition may please be deleted as learned members of the tribunal may deem it proper. 7. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of the hearing of the appeal.” 2. At the outset of hearing, the learned Authorized Representative (ld. AR) for the assessee submits that there is delay of 93 days in filing appeal before Tribunal. The Impugned order was passed by ld. CIT(A) on 11.11.2022, the time period for filing appeal before Tribunal was up to 10.11.2023, however, this appeal was filed on 13.04.2023, thus there is delay of 93 days in filing appeal. The ld. AR of the assessee submits that delay in filing appeal neither intentional nor deliberate. The assessee is a farmer and not much educated. The assessee studied upto eighth standard and does not know operation of computer or internet. Though, his representative informed him for filing appeal before Tribunal, however the assessee was at his native place at relevant time and when he returned back in the month of January, 2023, forget to contact his representative, in the meantime the time of filing the appeal was lapsed. When he realized/recollected for filing appeal and appeal was filed immediately i.e. on 13 th April 2023 The ld. AR submits that assessee has good case on merit and is liable to succeed in his appeal, is heard and decided on merit. 3. On merit of the case, the ld. AR of the assessee submits that Assessing Officer as well as ld. CIT(A) passed the ex parte order without giving reasonable and fair opportunity to the assessee. The assessment order was ITA No.241/SRT/2023/AY.2012-13 Kishorbhai Laxmanbhai Anagha 3 completed under section 144, though the assessee made certain compliance in response to notice issued by Assessing Officer. The ld. CIT(A) also confirmed the order of Assessing Officer in ex parte order, though the assessee requested for adjournment on 05.10.2022 and 02.09.2022. It is not the case that assessee has not made any compliance. The ld. AR of the assessee further submits that Assessing Officer while passing the assessment order made addition on account of sale of land at Magob, R.S. No.40/2, Block No.77, TP. No.64. The said land was jointly held by the assessee. The assessee was having 50% share in the land. In fact, the sale consideration shown in the sale deed, was never received by the assessee. This fact has been accepted by Tribunal in the case of purchaser M/s Sarthee Infrastructures, in ITA No.756/SRT/2018 for AY.2015-16, order dated 07.11.2022 is placed on record. The purchaser has shown the liability against the assessee in his books of accounts, so no addition is to be made when the assessee has not received consideration of sale. On the basis of aforesaid submission, the ld. AR of the assessee submits that matter may be restored to the Assessing Officer for verification of fact and passed for passing assessment order afresh in accordance with law. 4. On the other hand, the learned Commissioner of Income Tax - Departmental Representative (ld. CIT-DR), on the plea of condonation of delay submits that assessee has not shown reasonable and plausible explanation, the assessee has made a self-explanatory for condonation of delay. The reasons explained by the ld AR for the assessee are not sufficient for condoning the delay of 93 days. On merits of the case, the ld CIT-DR for ITA No.241/SRT/2023/AY.2012-13 Kishorbhai Laxmanbhai Anagha 4 the revenue submits that the Assessing Officer has given full opportunity to the assessee, the assessee has not made full compliance on his notices. Again before the ld. CIT(A), the assessee failed to file various opportunities, thus the assessee is not eligible for further opportunity. So far as, order in case of M/s Sarthee Infrastructures (supra) is concerned, para no.6 of the decision clearly shows that the cheque received by assessee was not presented for realization. The facts are very clear and orders of lower authorities are liable to be upheld. The assessee does not deserve any further round of opportunity before lower authorities. 5. We have considered the rival submissions of both the parties and have gone through the orders of lower authorities carefully. First, we are considering the plea of ld AR for the assessee on condonation of delay in filing appeal. The ld AR for the assessee while making his submissions vehemently argued that the assessee is a farmer and studied upto eighth standard and does not know operation of computer or internet. It was also argued that AR of assessee informed him for filing appeal before Tribunal, however the assessee was at his native place at relevant time and when he returned back in the month of January, 2023, forget to contact his representative, in the meantime the time of filing the appeal was lapsed. We find that to support such view the assessee has filed his affidavit. On considering the facts and submissions of ld AR for the assessee we find that the delay in filing appeal is not intentional or deliberate, hence, the delay of 93 days in filing appeal is condoned. Now adverting to the merits of the case. ITA No.241/SRT/2023/AY.2012-13 Kishorbhai Laxmanbhai Anagha 5 6. We find that the Assessing Officer made addition of Rs.4.14 crore by taking view that assessee along with his co-owner has sold agricultural land of Rs.8.25 crores. The assessee is having ½ shares, thus the assessee has received Rs.4.125 crore. The assessee has not filed any valid return of income nor any detail or document about cost of acquisition is furnished by assessee. The Assessing Officer treated the entire consideration was long term capital gain (LTCG). The ld. CIT(A) confirmed the action of Assessing Officer in ex parte proceedings by holding that various notices were issued to the assessee and presumed that assessee has nothing to say. We find that before ld. CIT(A), the assessee filed adjournment application on various dates, has been shown by way of screenshot of ITBA portal that assessee made response by filing PDF letter. Thus, it is not the case of complete non-compliance. We further find that Assessing Officer made addition of long term capital gain (LTCG) by treating entire sale consideration without allowing cost of acquisition. The stand of assessee before us is that he has not received any sale consideration. To substantiate such contention, the assessee has placed on record, the order of this Bench in the case of purchaser in ITA No. 756/Srt/2018 dated 07.11.2022, wherein the claim of purchaser (Sarthee Infrastructure) on account of sundry creditor qua assessee is accepted. Thus, considering the overall facts and circumstances of the case, the grounds of appeal raised by assessee is restored back to the file of Assessing Officer to reconsider the matter afresh and passed the order in accordance with law. Needless to direct before passing the order, the Assessing Officer has grant fair and ITA No.241/SRT/2023/AY.2012-13 Kishorbhai Laxmanbhai Anagha 6 reasonable opportunity. The assessee is also directed to be very vigilant and furnished all documents and information to the Assessing Officer without further delay. In the result, the grounds of appeal raised by the assessee are allowed for statistical purpose. 7. In the result, appeal of assessee is allowed for statistical purpose. Order pronounced on 26/03/2024 in the open court. Sd/- Sd/- (Dr. A. L. SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 26/03/2024 SAMANTA Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr.PS/PS, ITAT, Surat