Rajkumar Ghanshyamdas Bajaj, Gujrat V. The Income Tax Officer, International Tax Ward 1(2)(1), Mumbai

ITA 3366/MUM/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8917 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 29-01-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 21-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AYUSH CHHAJED
• Section: 68; 148; 144; 139; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND SHRI SANDEEP SINGH KARHAIL, JM ITA No.3366/Mum/2023 (Assessment Year: 2011-12) Rajkumar Ghanshyamdas Bajaj 360, A North Unit 3, Apna Nagar, Gandhidham, Gopalpuri, kachchh, Gujarat – 370 240 Vs. The Income Tax Officer, International Tax Ward 1(2)(1), Mittal Court, Mumbai - 400021 (Appellant) (Respondent) PAN No. ACHPB4707E Assessee by : Mr. Ayush Chhajed Revenue by : Smt. Mahita Nair, Sr. DR Date of hearing: 30-01-2024 Date of pronouncement : 31-01-2024 O R D E R PER PRASHANT MAHARISHI, AM: 01. This appeal is filed by Shri Rajkumar Ghanshyamdas Bajaj [Assessee / Appellant] against the Appellate order passed by the Commissioner of Income Tax (Appeals) 55, Mumbai [Ld. CIT(A)] dated 31.8.2023 for Assessment Year 2011-12, wherein the appeal filed by the Assessee against the Page | 2 ITA No.3366/Mum/2023 Rajkumar Ghanshyamdas Bajaj; A.Y. 2011-12 assessment order passed under section 144 r.w.s. 147 of The Income-tax Act, 1961 (the Act) dated 19.12.2018 passed by the ITO(IT)-1(2)(1), Mumbai (Ld. AO) was dismissed. 02. The Assessee has raised the following grounds of appeal:- i) The Ld. CIT (A) failed to appreciate that the date of service of order was 3.01.2019 a appeal was filed on 14.02.2019 and therefore, the delay was not of 27 days but of only days. The due date to file appeal was 2.02.2019 and was filed on 14.02.2019. (ii) The Ld. CIT(A) erred in disposing of the appeal without condoning the small delay of m 12 days (presumed by him of 27days) in filing an appeal before the CIT (A). (iii) The Ld. CIT (A) ought to have appreciated that the reasons for delay was clearly mentioned in the Form No. 35 itself and also filed during the course of appellate proceedings which ought to have been considered and condoned the delay which due to reasonable and sufficient reason. (iv) The Ld. CIT (A) erred in not disposing of the appeals on the merits in respect of additions made u / s 68 in respect of credits in saving Bank Account without appreciating that t were no such credits in the Bank Account which was in fact confirmed by the Asses Officer in the Remand Report. (v) The Ld. CIT (A) erred in not disposing the addition made by Assessing Officer as term capital gain of Rs. 23,00,000/- only on the basis AIR without appreciating that property was acquired in 2002 and was a long term capital gains for which com calculations was given. 03. The brief facts of the case shows that Mr. Rajkumar Ghanshyamdas Bajaj, the Assessee is a non resident who does not file any return of income under section 139 of the Act. The information was received from the Deputy Director of Income Tax (Investigation) – Unit 8(4), Mumbai vide letter 9.12.2016 that the Assessee has sold immovable property for Rs.23 lakhs during the financial year 2010-2011. The Assessee has also made high value transaction from his savings bank Page | 3 ITA No.3366/Mum/2023 Rajkumar Ghanshyamdas Bajaj; A.Y. 2011-12 account No.5452 with Standard Chartered Bank, Mumbai wherein the cash of Rs.20,20,000 was deposited and two outward remittances to Faiz Ahmed Qureshi was made to Dubai of Rs.9.85 lakhs as rent and staff salaries and neft credit amounting to Rs.2.70 lakhs from U.A.E. 04. The Assessee was issued notice under section 148 of the Act at his address 304, Marigold Bldg, Vasant Valley Phase I CHS Ltd., Malad East, Mumbai – 400 097 by speed post which returns with remarks as un-claimed. However, notices under section 142(1) of the Act was issued on 1.12.2018 online to the Assessee. In response to these notices no reply was received and therefore the assessment order was passed under section 144 of the Act on 19.12.2018 wherein the addition of short term capital gain of Rs.23,00,000/- was made on sale of immovable property. However, addition of Rs.2,20,20,000/- was also made being un-explained cash credit of sum deposited in his account with Standard Chartered Bank and Rs.2 crores with Corporation Bank, Gandhidham. The total income was determined at Rs.2,43,20,000/-. 05. The Assessee aggrieved by the order preferred appeal before the Ld. CIT(A), an appeal was filed on 14.2.2019 causing delay of 27 days. The Assessee did not file any application under section 249(3) of the Act but in form No.35 the Assessee submitted that he was working outside India till July 2018 and on return to India he was residing at 360A, North Unit 3, Apna Nagar, Gandhidham, Kachh, Gujarat – 370240. E Page | 4 ITA No.3366/Mum/2023 Rajkumar Ghanshyamdas Bajaj; A.Y. 2011-12 mail and notices were received at Mumbai address which was sold. He was out of India up to 12.12.2018 and returned back on 5.2.2019. 06. 5We have heard the parties and perused the orders of the lower authorities. The facts from the orders produced before us clearly shows that the Assessee was served noticves under section 148 of the Act as well as under section 142(1) of the Act on the premises which was sold. Therefore assessment order was passed ex-parte. Before the Ld. CIT(A)the Assessee has given the reason that the delay has been caused on account of he being outside India and returned back only on 5.2.2019. Further, the assessment order was collected by his Brother in law on 3.1.2019 personally. This has caused delay. The Ld. CIT(A) has rejected the request for condonation of delay mentioned in Form No.35 stating that the date of service of order is 3.1.2019 and the appeal was filed on 14.2.2019 in form No.35. We find that the Ld. CIT(A) rejected it on technical grounds that the Assessee did not file any affidavit showing that assessment order was received by his Brother in law on 3.1.2019. Further, the Assessee was not in India till 5.2.2019. The appeal was filed on 14.2.2019. If we consider that Assessee was not in India till 5.2.2019 and appeal was filed on 14.2.2019, we find that the Assessee came to India only on 5.2.2019 that should be the date of Page | 5 ITA No.3366/Mum/2023 Rajkumar Ghanshyamdas Bajaj; A.Y. 2011-12 receipt of order by the Assessee. Accordingly, as per Section 249(2)(b), the appeal is required to be filed within 30 days from the date of service of notice of demand relating to assessment. If the Assessee is not in India, we fail to understand that how he has received the order prior to that. The Ld. CIT(A) has taken a pedantic approach in considering the fact and merely rejecting the cause shown by the Assesse as insufficient only for the reason that it is not supported by an affidavit. We find that there is a sufficient cause in delay in filing of the appeal. In view of this we did not find that the Ld. CIT(A) is correct in not condoning the delay. Further, it could be seen that the notice to the Assessee by the assessing officer was also sent to the address that was not available with the Assessee during the course of assessment proceedings as the impugned property was already sold. Therefore, it is clear that the Assessee did not have any opportunity before the assessing officer. In view of the above fact, we restore the matter before the Ld. Assessing officer to decide the issue afresh by issuing notice at the address given in Form No.36. The notices may also be given to e- mail address mentioned in the form No.36. On receipt of such notices, the Assessee is directed to respond to the same by filing any submissions or contentions that he would like to raise. The Ld. Assessing Officer may decide the issue afresh. Page | 6 ITA No.3366/Mum/2023 Rajkumar Ghanshyamdas Bajaj; A.Y. 2011-12 07. In the result, without deciding on merits of any of the grounds of appeal, the matter is restored back to the Ld. AO. Accordingly, the appeal of the Assessee is allowed as directed above for statistical purposes. Order pronounced in the open court on 31.01.2024. S/- Sd/- (SANDEEP SINGH KARHAIL) Sd/- (PRASHANT MAHARISHI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 31.01.2024 Mini Pawar, Sr.PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, True Copy// Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai