A. Vimala, Hyderabad, Hyderabad V. ITO, Ward-8(3), Hyderabad, Hyderabad

ITA 260/HYD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6311 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 15-09-2020
• Assessment Year: 2007-2008
• Appeal Filed On: 17-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: M NARMADA
• Keywords: Capital asset; Cost of acquisition; Capital receipt; Condonation of delay
• Section: 143(3); 2(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) ITA NO.260/HYD/2017 ASSESSMENT YEAR:2007 - 08 A. VIMALA, HYDERABAD. PAN: BNWPA 7902 B VS. INCOME TAX OFFICER, WARD - 8(3), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI A. SRINIVAS REVENUE BY: SMT. M. NARMADA, DR DATE OF HEARING: 15/09/2020 DATE OF PRONOUNCEMENT: 17/09/2020 ORDER PER A. MOHAN ALANKAMONY, AM.: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT (A) - 2, HYDERABAD IN APPEAL NO. 0131/2015 - 16, DATED 30/09/2016 PASSED U/S. 143(3) R.W.S 250(6) OF THE ACT FOR THE AY: 2007 - 08. 2. THE ASSESSEE HAS RAISED SIX GROUNDS IN HER APPEAL WHICH ARE EXTRACTED HEREIN BELOW FOR REFERENCE: - 1. THE ORDER OF THE APPELLATE COMMISSIONER IS CONTRARY TO LAW, FACTS AND CIRCUMSTANCES OF THE CASE. 2 2. THE APPELLANT SUBMITS THAT THE RIGHT AND CLAIMS IN RESPE CT OF THE PROPERTY IS A CAPITAL ASSET AND THE APPELLATE COMMISSIONER ERRED IN CONFIRMING THE STAND OF THE AO THAT THE APPELLANT HAD NO RIGHT OVER THE PROPERTY. 3. THE APPELLANT SUBMITS THAT THE AMOUNT RECEIVED IS A CAPITAL RECEIPT ON ACCOUNT OF RELINQUISHM ENT OF HER CLAIMS AND RIGHTS IN THE PROPERTY, AND THE APPELLATE COMMISSIONER ERRED IN COMING TO A CONCLUSION THAT THE AMOUNT RECEIVED WAS NOT A CAPITAL RECEIPT. 4. THE APPELLANT SUBMITS THAT THE RIGHT IN THE PROPERTY IS A CAPITAL ASSET WITHIN THE MEANING OF SECTION 2(14) OF THE INCOME TAX ACT, AND THE COST OF ACQUISITION BEING NIL THE APPELLATE COMMISSIONER ERRED IN COMING TO A CONTRARY OPINION. 5. THE APPELLATE COMMISSIONER ERRED IN COMMENTING ON THE ASSESSEE IN PARA NO. 6 OF THE APPELLATE ORDER AND THE S AME MAY BE DELETED. 6. ANY OTHER GROUND WHICH THE ASSESSEE MIGHT URGE EITHER AT OR BEFORE THE DATE OF HEARINGS. 3. AT THE OUTSET, LD. AR SUBMITTED BEFORE US THAT THERE IS A DELAY OF 33 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN THIS REGARD, LD. A R BROUGHT OUR ATTENTION TOWARDS THE AFFIDAVIT FILED BY THE ASSESSEE SEEKING CONDONATION OF DELAY WHEREIN THE REASON FOR NOT FILING THE APPEAL WITHIN THE PRESCRIBED TIME LIMIT WAS EXPLAINED. FOR REFERENCE, THE RELEVANT PORTIONS FROM THE AFFIDAVIT IS EXTRACT ED HEREIN BELOW: - 1 2.. 3. THE APPELLATE ORDER WAS RECEIVED BY ME ON 16/11/2016 AND THE APPEAL BEFORE THE HONBLE TRIBUNAL WAS TO BE FILED WITHIN 60 DAYS FROM THE SAID DATE. 4. I HAVE SENT THE ORDER AND RELEVANT PAPERS TO THE OFFICE OF SRI AYYADEVARA S RINIVAS, CHARTERED ACCOUNTANT FOR 3 THE PREPARATION AND FILING OF THE APPEAL. HOWEVER, THE SAME COULD NOT BE FILED IN TIME AND THERE WAS A DELAY OF 33 DAYS IN FILING OF THE SAME. 5. THE ABOVE DELAY IS DUE TO THE FACT THAT SRI AYYADEVARA SRINIVAS WAS NOT KEE PING GOOD HEALTH AND WAS FREQUENTLY ON BED REST. 6. I SUBMIT BEFORE THE HONBLE TRIBUNAL THAT THE DELAY IS DUE TO FACTORS BEYOND MY CONTROL AND DUE TO THE ILL HEALTH OF MY AUTHORISED REPRESENTATIVE. 7. I THEREFORE PRAY THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF MY CASE EXPLAINED ABOVE, THE HONBLE TRIBUNAL MAY KINDLY CONDONE THE DELAY IN FILING OF THE APPEAL 4. AFTER HEARING THE SUBMISSIONS OF THE LD. AR AND ON PERUSAL OF THE AFFIDAVIT FILED BY THE ASSESSEE EXPLAINING THE REASONS FOR THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL, WE FIND MERIT IN THE SUBMISSIONS OF THE ASSESSEE THAT THE ASSESSEE COULD NOT FILE THE APPEAL BEFORE THE TRIBUNAL WITHIN THE STIPULATED TIME DUE TO THE ILL HEALTH SUFFERED BY HER COUNSEL. HENCE, IN THE INTEREST OF JUSTICE, WE HEREBY CONDONE THE DELAY OF 33 DAYS IN THE FILING THE APPEAL BEFORE THE TRIBUNAL AND PROCEED TO DISPOSE OFF THE APPEAL ON MERITS. 5. AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS THEREFORE PLEADED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE LD CIT (A) IN ORDER TO PROVIDE ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD . LD. DR, ON THE OTHER HAND, VEHEMENTLY O PPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED THAT 4 PROPER OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE HOWEVER, ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NOR HER REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A). IT WAS FURTHER SUBMITTED TH AT THE LD. CIT (A) HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDER BASED ON THE MATERIALS AVAILABLE ON RECORD. HENCE, IT WAS PLEADED THAT THE ORDER PASSED BY THE LD. CIT(A) DOES NOT CALL FOR ANY INTERFERENCE. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAR EFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, WE FIND MERIT IN THE SUBMISSIONS OF THE LD. DR. THE LD. CIT (A) HAD POSTED THE CASE ON FIVE OCCASIONS I.E., 27 /07/2016; 08/08/2016; 16/08/2016; 14/09/2016 AND 23/09/2016. HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A) ON THE DATE OF HEARING. THEREFORE, THE LD. CIT (A) WAS LEFT WITH NO OTHER OPTION EXCEPT TO ADJUDICATE THE APPEAL EX - PARTE BASE D ON THE MATERIAL AVAILABLE ON RECORD. IN THIS SITUATION, WE DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVER, CONSIDERING THE PRAYER OF THE LD. AR, AND IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF L D. CIT (A) IN ORDER TO CONSIDER THE APPEAL AFRESH ON MERITS BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH, WE ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. CIT (A) IN THE PROCEEDINGS FAILING W HICH THE LD. CIT (A) SHALL BE AT LIBERTY TO 5 PASS APPROPRIATE ORDER IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON THE RECORD. IT IS ORDERED ACCORDINGLY. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS IND ICATED HEREINABOVE. PRONOUNCED IN THE OPEN COURT ON 17 TH SEPTEMBER, 2020. SD/ - SD/ - (P. MADHAVI DEVI) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 17 TH SEPTEMBER, 2020. OKK COPY TO: - 1. S MT. A. VIMALA , C/O. V. SRIDHAR & CO, 12/2/823/A/78, GEETHA APARTMENTS, SANTOSH NAGAR COLONY, MEHDIPATNAM, HYDERABAD - 500028. 2. INCOME TAX OFFICER, WARD - 8(3), HYDERABAD. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) - 2, HYDERABAD. 4. THE PRINCIPAL COMMISSIONER OF INCOME TAX - 2, HYDERABAD. 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. 6. GUARD FILE.