Rajni Vinod Malhotra, Mumbai V. DCIT, International Taxation, Jaipur

ITA 324/JPR/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 5455 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-03-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 27-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Condonation of delay; Reassessment proceedings; Set aside; Capital Gains
• Section: 148; 271(1)(c); 143(3); 274; 69A; 72

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR MkWa- ,l-lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ IT(IT)A. No. 324/JP/2021 fu/kZkj.k o"kZ@Assessment Years : 2012-13 Rajni Vinod Malhotra 1020 Agarshan Nagar, Ganganagar, Shri Ganganagar-335001. cuke Vs. Commissioner of Income Tax Appeals, CIT(A), Delhi-42. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BHBPM 0405 Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj l s@ Assessee by : Shri Rohan Sogani (C.A.) jktLo dh vksj ls@ Revenue by : Shri A.S. Nehra (Addl. CIT) a lquokbZ dh rkjh[k@ Date of Hearing :17/03/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 31/03/2022 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M. This is an appeal filed by the assessee directed against the order of the learned Commissioner of Income Tax (Appeals), Delhi-42 (hereinafter called as ‘CIT(A)’) dated 03.11.2021 for the Assessment year 2012-13. 2. The Assesee raised the following grounds of appeal:- “The learned Commissioner of income tax (appeals) ought not to have dismissed the appeal filed by the appellant as not maintainable on the ground that the appellant is not bonafide on filing the appeal beyond the time period of 30 days. 2. The learned Commissioner of income tax (appeals) ought to have provided an opportunity of being heard to the appellant in case there IT(IT)A No. 324 /JP/2021 Rajni Vinod Malhotra 2 were objections as regards the delay in filing of the appeal following the principles of natural justice. 3. The learned Commissioner of income tax (appeals) ought to have considered the numerous pleas filed by the appellant to provide an opportunity of personal hearing to the appellant at least vide the video conferencing mod. 4. The learned Commissioner of income tax (appeals) has erred in not deciding the ground of appeal disputing the addition of Rs. 75,00,000/-, the entire value of such considering as short term capital gains made by the learned Assessing Officer. 5. The learned Commissioner of income tax (appeals) has erred in not deciding the ground of appeal disputing the fact that the indexed cost of acquisition was not considered by the learned Assessing Officer while calculating the amount of capital gains. 6. The learned Commissioner of income tax (appeals) has erred in not deciding the ground of appeal disputing the fact that the learned Commissioner of Income Tax (Appeals) had not allowed the deduction u/s 54 of the Income Tax Act, 1961 towards purchase of a new residential property. 7. The learned Commissioner of income tax (appeals) has erred in not deciding the ground of appeal disputing the addition of the entire amount of investment in fixed deposits without considering the nature of deposits as being NRE or NRO. 8. The appellant craves leave to amend, alter or delete the above ground of appeal.” 3. The brief facts of the case are as under:- “It is observed Form 35 that the impugned order is dated 24.12.2019 and the order served on the same day. Accordingly, the last date of filing the appeal was 24.01.2020. However, the appeal has been filed on 20.03.2020. The appellant has submitted in Form 35 as follows:- “The appellant is a non resident residing in Qatar. The appellant relied on the advice of the consultant and filed the return of income based on incurred advice. She was under the impression that the assessment was completed and the matter was closed. However, on receipt of the assessment order showing such a huge demand, she consulted another IT(IT)A No. 324 /JP/2021 Rajni Vinod Malhotra 3 professional and realized the magnitude of the matter. Accordingly, this appeal is being filed and the appellant requests your goodself to condone the delay in filing the appeal beyond the time limit of 30 days from the date of the order” 4. The Assessing Officer also assessed u/s 143(3) r.w.s. 147 of the Act at Rs. 3,46,08,520/-. Issued demand notice and challan. Charge interest u/s 234A, u/s 234B, u/s 234C & u/s 234D of the Act. Issued penalty notice u/s 271(1)(c) of the Act in respect of Income determined u/s 69A of the Act. Penalty notice u/s 271F r.w.s. 274 issued for non-compliance of the provisions of section 139(1) of the Act. 5. Being aggrieved by the assessment order, the assessee preferred an appeal before the ld. CIT(A). Before the ld. CIT(A), the assessee has reiterated its arguments. The ld. CIT(A) for the reason stated in his appellant order has rejected arguments and submissions made by the assessee. 6. The ld. CIT (A) observed that the no affidavit or other evidence has been submitted in support of the reasons for delay at the time of filing of appeal or thereafter when the assessee was afforded multiple opportunity for the same. The assessee submitted arguments on merit but did not submit anything about condonation of delay. It is trite that the delay can be condoned only if there is no gross negligence or deliberate inaction or lack of bona fide. Secondly the assessee should furnish acceptable and cogent reasons sufficient to condone delay. Hon'ble ITAT Mumbai in Prashant Projects Ltd. v. DCIT [2013] 37 taxmann.com 137 (Mumbai- Trib.) has enumerated various general principles for condonation of delay as under:- 1. If sufficient cause for excusing delay is shown, discretion is available to the Commissioner (Appeals) to condone the delay and admit the appeal. IT(IT)A No. 324 /JP/2021 Rajni Vinod Malhotra 4 2. The expression 'sufficient cause' is not defined in the Act, but it means a cause which is beyond the control of an assessee. For invoking the aid of the section any cause which prevents a person approaching the Commissioner (Appeals) within time is considered sufficient cause. In doing so, it is the test of reasonable man in normal circumstances which has to be applied. The test whether or not a cause is sufficient is to see whether it could have been avoided by the party by the exercise of due care and attention. In other words, whether it is bona fide cause. What may be sufficient cause in one case may be otherwise in another. What is of essence is whether it was an act of prudent or reasonable man. 3. Section 249(3) is discretionary in nature and the assessee cannot seek condonation of delay under this provision as a matter of right, but has to satisfy the Commissioner (Appeals) by explaining the sufficient cause for the delay. 4. Just because there is merit in the appeal filed by the assessee, any amount of delay, however, negligently caused, cannot be condoned. 5. In the case of J.B. Advani & Co. (P.) Ltd. v. R.D. Shah, C/T [1969] 72 ITR 395, the Supreme Court had held that explanation of delay for the entire period is necessary. What is expected of the appellant in such matters is to show that delay was occasioned due to some sufficient cause. The cause pleaded must fit in the facts and circumstances of the given case and the explanation offered regarding the delay occasioned by such cause should appeal to reasons so as to get judicial approval.” Adopting a liberal view in condoning delay is one of the guiding principles in the realm of belated appeals, but liberal approach cannot be equated with a licence to file appeals at will disregarding the time limits fixed by the statutes. As per own admission (Form 35), the order was served on the assessee on 24.12.2019. Therefore, the due date of appeal was 24.01.2020. As per own admission, the assessee was aware of the passing of the assessment order. The assessee has not contended that he was unaware about the due date of filing of appeal. In any case, the same is mentioned in the demand notice annexed alongwith the assessment order which was passed on 24.12.2019. The IT(IT)A No. 324 /JP/2021 Rajni Vinod Malhotra 5 assessee is a non-resident Indian of substantial means as she has been having substantial movable as well as immovable property and bank account with huge cash deposits during the relevant financial year. The assessee was represented by an authorized representative/ consultant during assessment. Clearly, the assessee was quite aware that the only recourse available in the matter was filing of appeal. It is therefore, clear that not filing appeal against assessment within the given time was a conscious decision of the appellant or in the least the assessee was highly reckless in attending her legal obligations. The assessee cannot seek shelter under the claim that the appeal was filed only after the discussion with the 'another consultant'. Nothing prevented the assessee to file appeal in time. No substantive reason backed by any cogent evidence such as affidavit etc. has been given for considering the condonation application. The assessee has failed to prove his bonafide in filing belated appeal. No sufficient cause has been shown for explaining delay of two months in filing appeal. The condonation of delay cannot be granted in this case.” 7. Aggrieved by the CIT(A) order, the assessee is in appeal before us. Before the CIT (A), the assesee has reiterated that his submissions, which was not taken on record by the CIT (A). Before us the Ld AR for assessee submitted a detailed Written submissions which are as under :- “1. Assessee appellant is a female of about 60 years of age. Assessee is a Non-Resident, residing in Doha, Qatar. Assessee left India in the year 1992 and since then she has been staying outside India only. 2. Assessee did not have any permanent place of stay in India and used to stay with her relatives in Mumbai, whenever, she had to come to India. 3. For the relevant previous year, assessee's case was reopened under Section 148 and proceeding were underway during the latter part of Calendar Year 2019. 4. The assessee had been managing the reassessment proceeding before the Income Tax Department, through her Tax Consultant in IT(IT)A No. 324 /JP/2021 Rajni Vinod Malhotra 6 India and was solely dependent on such consultant for such proceedings and submission to be made before the Income Tax Department. 5. Assessment Order, under Section 143(3) read with Section 147, in the case of assessee was passed on 24.12.2019. The same was received by the assessee on such date. Accordingly, assessee was required to file appeal before Id. CIT(A) on or before 23.01.2020, i.e. within 30 days of receipt of the order. However, assessee filed appeal before Id. CIT(A) on 20.03.2020 with delay of 57 days. 6. Assessee was not in India, at the time and when the order in the reassessment proceedings was passed. 7. Details as regards the travel to India and from India during such period are as under:- Date Arrival/Departure Evidence (Passport Copy Enclosed) Saturday, September 21, Arrived in India Page 3 Saturday, September 28, Departed from Page 5 Monday, January 13, 2020 Arrived in India Page 5 Thursday, January 23, 2020 Departed from Page 5 Friday, February 28, 2020 Arrived in India Page 9 Monday, March 9, 2020 Departed from Page 3 Tuesday, March 10, 2020 Arrived in India Page 5 Wednesday, March 18, 2020 Departed from Page 6 8. Thereafter, when the assessment order was passed, the assessee was not knowing the legal remedies available to her. Then, assessee changed the Tax Consultant in India. Subsequently, assessee arranged all the relevant documents in order to prepare for filing of appeal. In the interregnum, i.e. in January 2020 and February 2020, since there was outbreak of Covid-19 pandemic across the world, there were travel restrictions and also assessee was hesitant in traveling to India during such period. IT(IT)A No. 324 /JP/2021 Rajni Vinod Malhotra 7 9. Delay in filing of appeal before Id. CIT(A), was not willful on the part of the assessee. 10. Before Id. CIT(A), detail submissions are filed on merit. However, Id. CIT (A) dismissed the appeal of the assessee as having been filed with delay. No opportunity, whatsoever, was provided to assessee to present her case and also to provide the reason for filing such appeal with delay. 11. The delay in filing the appeal was not willful on the part of assessee and as can be seen from the above, there were sufficient cause for such delay. Therefore, a humble prayer is made that delay in filing appeal may please be condoned. 12. Reliance is placed on the following judicial pronouncement of the Hon'ble Supreme Court:- Collector, Land Acquisition vs. Mst. Katiji [1987] 167 ITR 471 "The legislature has conferred the power to condone delay by enacting S.5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by meaningful manner which subserves the end of justice- that being the life- purchase of the existence of the institution of courts.” 13. Ld. CIT(A), at page 3, of his order, has relied upon the decision of Hon'ble ITAT Mumbai Bench, in the case of Prashant Projects Ltd. [2013] 37 taxmann.com 137 (Mumbai- Trib) . 13.1. However, the facts in the case of Prashant Projects Ltd. (Supra) are totally different from the present case. 13.2. In the case of Prashant Project Ltd., assessee had wrongly filed the appeal before Assistant Commissioner, which was also filed with a delay of more than 3 years. Thereafter, assessee made an application before Id. CIT(A) to transfer the case and condone the delay. IT(IT)A No. 324 /JP/2021 Rajni Vinod Malhotra 8 13.3. Assessee could not provide the cause of delay to Id. CIT(A). 13.4. Accordingly, the delay was not condoned. However, in the present case, the delay in filing the appeal was less than 60 days and that to the assessee had sufficient cause, as enumerated in the aforementioned paras, for filing the appeal with delay. Thus, the decision as relied upon by the Id. CIT(A) is not applicable in the present case.” 8. The ld. AR for assessee submitted when the assessment order was passed, the assessese was not knowing the legal remedies available to her. The ld. AR for assessee furnished the proof of travel to India during such period. Further the ld. AR for assessee relied upon the judicial pronouncement of the Hon’ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and Ors. vs. Katiji and Ors. in Civil Appeal No. 460 of 1987 dated 19.02.1987. 9. The ld. DR, on the other hand strongly supporting the order of the ld. CIT(A) submitted that there is no merit in arguments taken by the ld. AR of the assessee and the AO has rightly taken has a fit case for imposition of penalty U/S 271(1)c. 10. We have heard both the parties, perused materials available on record and gone through orders of the authorities below. The ld. AR for assessee submitted documentary evidence in the compilation of Paper Book and Written submission before us. Admittedly, the ld. CIT(A) had not condoned the delay holding that reasons cited does not constitute sufficient and reasonable cause. Once bonafides of assessee in seeking condonation of delay are genuine in nature and we don’t have any hesitation to condone the delay and the Hon’ble Supreme Court and the Hon’ble Jurisdictional High Court held in series of judgments that no appeal should be dismissed in limine on technicalities like delay etc. In the light of this settled position of law, we remand the issue back to IT(IT)A No. 324 /JP/2021 Rajni Vinod Malhotra 9 the file of the ld. CIT(A) for fresh adjudication on the merits of the appeal after affording due opportunity of hearing to the assesee in accordance with law. Therefore the order of the CIT (A) is accordingly set aside and Ground Nos.1 to 3 of the assesses appeal is allowed and Ground Nos. 4 to 7 is remand back to CIT(A). In the result, the appeal filed by the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 31/03/2022. Sd/- Sd/- ¼ jkBksM deys'k t;UrHkkbZ ½ ¼,l-lhrky{eh½ ( RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalashmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@ Jaipur fnukad@Dated:- 31/03/2022. *Santosh vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Rajni Vinod Malhotra, Shri Ganganager. 2. izR;FkhZ@ The Respondent- CIT(A), Delhi-42. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur. 6. xkMZ QkbZy@ Guard File { ITA No. 324/JP/2021} lgk;d iathdkj@Asst. Registrar