Ompal Singh, Ghaziabad V. ITO, Ward-1(2), Ghaziabad

ITA 268/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4465 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-01-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Assessee Lawyers: VINAY VERMA ADVS; SAHIL SHRMA
• Keywords: Principle of natural justice; Reasonable cause; Condonation of delay; Set aside; Capital Gains
• Section: 144

Judgement Text

1 ITA NOS. 268 & 3008/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I(2) + SMC NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEMBER, AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 268/DEL/2019 ( A.Y 2009-10) OMPAL SINGH S/O SHRI BRAHM SINGH, VILLAGE- DUHAI, GHAZIABAD UTTAR PRADESH PIN: 201001 PAN: DNUPP7716J (APPELLANT) VS ITO WARD-1(2) ROOM NO. C-103, IST FLOOR, CGO-II, KAZMLA NEHRU, UTTAR PRADESH GHAZIABAD (RESPONDENT) ITA NO. 3008/DEL/2019 ( A.Y 2009-10) OMPAL SINGH SANJAY PRASHAR ADV, 47A, FF, DEVIKA CHAMBER OPP. MAHALAXMI MALL, RDC, RAJ NAGAR, GHAZIABAD UTTAR PRADESH PAN: DNUPP7716J (APPELLANT) VS ITO WARD-1(2) ROOM NO. C-103, IST FLOOR, CGO-II, KAZMLA NEHRU, UTTAR PRADESH GHAZIABAD (RESPONDENT) APPELLANT BY SH. SAHIL SHRMA & SH. VINAY VERMA, ADVS RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINST THE ORDER DATED 30/11/2018, 27/02/2019 RESPECTIVELY, PASSED BY CIT( A)-GHAZIABAD, FOR ASSESSMENT YEAR 2009-10. DATE OF HEARING 24.02.2020 DATE OF PRONOUNCEMENT 26.02.2020 2 ITA NOS. 268 & 3008/DEL/2019 2. THE GROUNDS OF APPEAL ARE AS UNDER:- ITA NO. 268/DEL/2019 1. THAT THE LD. CIT(A), GHAZIABAD ERRED IN LAW, ON FA CTS AND IN SURROUNDING CIRCUMSTANCES IN DISMISSING THE APPEAL IN LIMINE AN D IN ARBITRARY, WHIMSICAL MANNER AND THAT TOO ON TECHNICAL GROUNDS. 2. THAT THE LD. CIT(A) ALSO ERRED IN LAW, ON FACTS AN D IN SURROUNDING CIRCUMSTANCES IN FAILING TO EXAMINE THE VALIDITY OF SERVICE AS PER LAW OF NOTICE, ALLEGED TO HAVE BEEN ISSUED BY HER OFFICE. 3. THAT THE LD. CIT(A) ERRED IN LAW ON FACTS AND IN S URROUNDING CIRCUMSTANCES IN FAILING TO APPRECIATE THAT THE APP ELLANT OF RURAL BACKGROUND HAVING ZERO KNOWLEDGE OF COMPLICATED PROCEDURE OF I NCOME TAX LAW DOES NOT STAND TO BENEFIT BY NOT PROSECUTING THE APPEAL INVO LVING HUGE PENALTY. 4. THAT THE LD. CIT(A) FURTHER ERRED IN LAW, ON FACTS AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIATE THAT SATISF ACTION OF A.O HAS NEITHER BEEN RECORDED IN IMPUGNED ASSESSMENT ORDER NOR IN I MPUGNED EXPARTE PENALTY ORDER UNDER APPEAL, WHICH RENDER THE SAME U NSUSTAINABLE IN LAW. 5. THAT THE LD. CIT(A) ALSO ERRED IN LAW, ON FACTS AN D IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIATE THAT THE QUA NTUM APPEAL ITSELF IS PENDING BEFORE HER FOR ADJUDICATION AND IMPUGNED PE NALTY ORDER IS ITSELF UNSUSTAINABLE IN LAW TILL DISPOSAL OF APPEAL. 6. THAT THE LD. CIT(A) ERRED IN LAW, ON FACTS AND IN SURROUNDING CIRCUMSTANCES IN FAILING TO APPRECIATE THAT THE DEL AY OF 23 DAYS IN FILING APPEAL WAS NOT INTENTIONAL, DELIBERATE BUT WAS BASE D ON MEDICAL GROUNDS. ITA NO. 3008/DEL/2019 1. THAT THE ORDER OF LD. A.O. OUGHT TO HAVE BEEN SET ASIDE AS IT WAS PASSED U/S 144/147 OF I.T. ACT. 2. THAT THE LD. CIT(A) WAS WRONG IN CONFIRMING THE AS SESSMENT ORDER AND DISMISSING THE APPEAL IN LIMINE. 3 ITA NOS. 268 & 3008/DEL/2019 3. THAT THE LD. CIT(A) ERRED IN NOT APPRECIATING LETT ER DATED 12-11-2018 OF LD. CIT(A) ASKING THE REASON TO EXPLAIN THE DELAY I N FILING APPEAL (ANNEXURE- A). THE LETTER OF ASSESSEE DATED 20-11-2018 EXPLAIN ING THE DELAY ON ACCOUNT OF MEDICAL TREATMENT OF THE ASSESSEE (ANNEXURE-B). 4. THAT ON THE ABOVE ACCOUNT, HIS CONCLUSION THAT NO REASON WAS SHOWN AND FAILURE OF REASONABLE DILIGENCE EXISTED IN PROSECUT ING THE APPEAL IS WRONG AND THE ORDER OUGHT TO BE SET ASIDE. 5. THAT ON THE FACTS THERE WAS A REASONABLE CAUSE IN FILING THE APPEAL LATE ON THIS GROUND, ITS DISMISSAL IS WRONG. 6. THAT APART FROM THE ABOVE, THE ASSESSEE IS CHALLEN GING ON THE BASIS OF REASONS ON RECORD, THE RE-ASSESSMENT PROCEEDINGS AN D THE ORDER AS BEING WITHOUT THE AUTHORITY OF LAW. 7. THAT THE ABOVE GROUND BEING FUNDAMENTAL TO THE ASS ESSMENT ORDER SHOULD BE RESOLVED FIRST BEING PURELY LEGAL IN NATURE TO D ETERMINE THE VALIDITY OF THE RE- ASSESSMENT ORDER PASSED U/S 144/147 OF I. T. AC T. 8. THAT EVEN OTHERWISE, LEVY OF CAPITAL GAINS TAX IS WRONG. 4. THE ASSESSEE IS A VILLAGER AND SOLD AGRICULTURAL LAND OF RS. 25,00,000/- AT MARKET RATES INVOLVING STAMP DUTY VALUATION OF RS. 52,10,000/- VIDE SALE DEED DATED 21/10/2008. THE ASSESSING OFFICER COMPUTED T HE CAPITAL GAIN TAX INCOME AMOUNTING TO RS. 46,22,498/-. THE ASSESSMEN T ORDER WAS PASSED U/S 144 OF THE INCOME TAX ACT, 1961. 5. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL ON THE GROUND OF DELAY. 6. THE LD. AR SUBMITTED THAT NO OPPORTUNITY WAS GIV EN BY THE ASSESSING OFFICER AS WELL AS BY THE CIT(A) TO REPRESENT THE C ASE BEFORE THE REVENUE AUTHORITIES. THEREFORE, THE ASSESSEE BE GRANTED OP PORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THE LD. A R FURTHER SUBMITTED THAT DUE TO MEDICAL EXIGENCIES, THE ASSESSEE COULD NOT FILE APPEAL BEFORE THE CIT(A) 4 ITA NOS. 268 & 3008/DEL/2019 WITHIN TIME AND FOR WHICH THE ASSESSEE HAD FILED CO NDONATION OF DELAY ON 20/11/2018 EXPLAINING THE REASON FOR DELAY. THEREF ORE, THE LD. AR SUBMITTED THAT THE DELAY MAY BE CONDONED AND DIRECT THE CIT(A ) TO HEARD THE APPEAL ON MERIT. 7. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. IT CAN BE SEEN THAT THE ASSESSEE HAS FIELD CONDONTION OF DELAY APPLICATION BEFORE THE CIT(A) ALONG WITH THE MEDICA L CERTIFICATES DUE TO SUFFERING OF MEDICAL PROBLEMS. THE REASON FOR CONDONATION OF DELAY BEFORE THE CIT(A) WAS GENUINE. THEREFORE, THE DELAY IS CONDONED AND THERE FORE, IT WILL BE APPROPRIATE TO REMAND BACK ENTIRE ISSUE TO THE FILE OF THE CIT( A) FOR DECIDING THE APPEAL OF THE ASSESSEE ON MERIT. NEEDLESS TO SAY, THE ASSESS EE BE GIVEN OPPORTUNITY OF HEARING BY FOLLOWING PRINCIPLES OF NATURAL JUSTICE. THUS, ITA NO. 3008/DEL/2019 IS PARTLY ALLOWED FOR STATISTICAL PUR POSE. AS REGARDS ITA NO. 268/DEL/2019 RELATING TO PENALTY U/S 271(1)(C), THE SAME IS CONSEQUENTIAL. HENCE, THE ISSUE IS REMANDED BACK TO THE FILE OF TH E CIT(A), IN LIGHT OF THE REMAND BACK IN QUANTUM APPEAL HEREINABOVE. 9. IN RESULT, BOTH THE APPEALS ARE PARTLY ALLOWED F OR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH FEBRUARY, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26/02/2020 R. NAHEED 5 ITA NOS. 268 & 3008/DEL/2019 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 24.01.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.01.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 2 6 .02.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 2 6 .02.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 2 6 .02.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT 6 ITA NOS. 268 & 3008/DEL/2019 REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER