SULBHA K. AMRE , MUMBAI V. ITO - 27(3)(4), MUMBAI

ITA 357/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8249 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 21-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital Gains
• Section: 143(3)

Judgement Text

आयकर अपीलीय अिधकरण मुंबई पीठ “बी” मुंबई ŵी िवकास अव̾थी, Ɋाियक सद˟ एवं ŵी Ůशांत महिषŊ, लेखा सद˟ के समƗ IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “B”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER आअसं.357/मुं/2021(िन.व. 2014-15) ITA No. 357/MUM/2021 (A.Y.2014-15) Sulbha K. Amre, 702, A-Wing, 7 th Floor, Tulsi Co-Op Hsg. Society, Subhash Nagar, Chembur, Mumbai-400071. PAN: AADPA7936N ...... अपीलाथŎ /Appellant बनाम Vs. ITO-27(3)(2), 4 th Floor, Tower No.6, Vashi Rly Station Commercial Complex, Vashi, Navi Mumbai-400703. ..... Ůितवादी/Respondent अपीलाथŎ Ȫारा/ Appellant by : Sh. Venugopal C. Nair, CA Ůितवादी Ȫारा/Respondent by : Sh. C.T. Mathews, Sr. DR सुनवाई की ितिथ/ Date of hearing : 23/02/2022 घोषणा की ितिथ/ Date of pronouncement : 23/02/2022 आदेश/ ORDER PER VIKAS AWASTHY, JM: This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter referred to as ‘the CIT(A), (NFAC)] dated 02.03.2021 for the Assessment Year (AY) 2014-15. 2 आअसं.357/मुं/2021 (िन.व. 2014-15) ITA No. 357/MUM/2021 (A.Y.2014-15) 2. Sh. Venugopal C. Nair appearing on behalf of the assessee submitted at the outset that this appeal is arising from the addition made in the hands of assessee for the AY 2014-15 on protective basis. Substantive addition has been made in assessee’s case in AY 2013-14. The assessee has settled the dispute under Vivad Se Vishwas Scheme, 2020 (hereinafter referred to as ‘VSVS’) and has paid the tax as determined by the designated authority in Form No.3. The ld. Authorized Representative (AR) furnished a copy of assessment order dated 18.02.2016 passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) in assessee’s case for AY 2013-14 and a copy of Form No.5 issued under VSVS indicating payment of disputed tax amount for the AY 2013-14. The ld. AR submitted that since the addition made on substantive basis in AY 2013-14 has been accepted by the assessee. The addition made on protective basis in the impugned AY should be deleted. The ld. AR pointed that the CIT(A) has dismissed the appeal of assessee on the ground that the appeal is time barred. 3. Sh. C.T. Mathews representing the Department vehemently supporting the order of CIT(A) stated that the assessee was not able to explain “sufficient cause” for delay in filing of the appeal. Consequently, the appeal of assessee was dismissed. On merits of the issue, the ld. DR after verifying the facts from the concerned Assessing Officer (AO) admitted that the assessee has settled the issue under VSVS in AY 2013-14. 4. We have heard the submissions made by rival sides and have perused the orders of authorities below. We have also examined the documents furnished by the assessee in the form of Paper Book (PB). A perusal of the assessment order dated 30.12.2016 for the impugned AY reveals that addition 3 आअसं.357/मुं/2021 (िन.व. 2014-15) ITA No. 357/MUM/2021 (A.Y.2014-15) of Rs. 1,28,88,229/- on account of Long Term Capital Gains (LTCG) was made in the hands of assessee in the AY 2013-14 on substantive basis. In the impugned AY, the addition has been made in the hands of assessee on protective basis. Admittedly, the assessee accepted the addition in AY 2013-14 and has settled the dispute under VSVS, the declaration filed by the assessee has been accepted by the designated authority and after payment of the disputed tax, the designated authority has issued Form No.5 to the assessee. This appeal was listed before us for hearing on 21.02.2022. The ld. DR sought time to verify the fact regarding the deposit of outstanding amount under VSVS. Accordingly, the appeal was adjourned to today i.e. 23.02.2022. The ld. DR made statement on the instruction from the AO that the dispute has been settled by the assessee under VSVS and the tax amount has been paid and thereafter Form No.5 has been issued to the assessee by the designated authority. In view of fact that the assessee has accepted the addition and has settled the same in AY 2013-14 wherein addition was made on substantive basis, the addition made in the impugned AY on protective basis is therefore liable to be deleted. 5. We find that the assessee had carried this issue in appeal before the CIT(A). The appeal before the CIT(A) was time barred by 20 days. The CIT(A) in the impugned order has mentioned that the assessee has not given any reasons for delay, in fact the CIT(A) has observed in para-4.3 of the impugned order that assessee has denied to have delay in filing appeal. On the contrary, the assessee has filed a paper book wherein at page 14 to 16, a copy of acknowledgement of application for condonation of delay, deficiency memo with respect to non-filing of condonation application and a copy of application dated 14.01.2020 requesting for condonation of delay, respectively are placed on record. A perusal of said application reveals that the assessee has given bonafide reasons for delay in filing of the first appeal by assessee. The 4 आअसं.357/मुं/2021 (िन.व. 2014-15) ITA No. 357/MUM/2021 (A.Y.2014-15) acknowledgement clearly establishes that the assessee had filed an application seeking condonation of delay. The CIT(A) by taking a pedantic view dismissed the appeal of assessee on the ground of limitation. The Hon’ble Supreme Court of India through various judgments has time and again held that acceptance of explanation for delay should be the rule and refusal an exception, more so when no negligence or inaction or want of bonafide can be imputed to the defaulting party. 6. The Hon’ble Apex Court in the case of Ram Nath Sao Vs. Gobardhan Sao & Ors., 2002 AIR 1201, has held that by taking a pedantic and hyper-technical view of the matter, the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the parties against whom the lis terminates either by default or inaction and defeating valuable right of such a party to have the decision on merit. The Hon’ble Apex Court in the case of Collector, Land Acquisition Vs. Mst. Katiji, 167 ITR 471, has held that the expression “every days delay must be explained” does not imply a pedantic approach. The doctrine must be applied in a rational, common sense and pragmatic manner. The Hon’ble Court further held that the expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which would subserve the ends of justice. When substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserve to be preferred for the other side cannot claim to have a vested right in injustice being done because of non-deliberate delay. Thus, in the light of aforesaid decisions rendered by Hon’ble Apex Court laying down the principles for considering explanation for condonation of delay, we set-aside the order of CIT(A). 5 आअसं.357/मुं/2021 (िन.व. 2014-15) ITA No. 357/MUM/2021 (A.Y.2014-15) 7. The AO is directed to delete the addition on protective basis in the impugned AY for the reasons aforestated. 8. In the result, appeal of the assessee is allowed. Order pronounced in the open court on Wednesday, the 23 rd day of February, 2022. Sd/- Sd/- (PRASHANT MAHARISHI) (VIKAS AWASTHY) लेखा सद˟/ACCOUNTANT MEMBER Ɋाियक सद˟/JUDICIAL MEMBER मुंबई/Mumbai, िदनांक/Dated: 23/02/2022 S.K., Sr. PS Ůितिलिप अŤेिषतCopy of the Order forwarded to : 1. अपीलाथŎ/The Appellant , 2. Ůितवादी/ The Respondent. 3. आयकर आयुƅ(अ)/ The CIT(A)- 4. आयकर आयुƅ CIT 5. िवभागीय Ůितिनिध, आय.अपी.अिध., मुबंई/DR, ITAT, Mumbai 6. गाडŊ फाइल/Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai