Sri P V Sreeramaiah (HUF) , Bangalore V. Income Tax Officer Ward-6(3)(2), Bangalore

ITA 379/BANG/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1515 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-12-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 01-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R PREMI
• Assessee Lawyers: V SRINIVASAN
• Keywords: Opportunity of being heard; Condonation of delay; Set aside; Capital Gains
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI B.R BASKARAN, ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO.379/BANG/2019 ASSESSMENT YEAR : 2011-12 SRI P.V SREERAMAIAH (HUF), #108, MYLARLINGESHWARA NILAYA, SAHAKARA NAGARA POST, AMRUTHAHALLI, BENGALURU-560 092. PAN AAOHP 1927 M VS. THE INCOME-TAX OFFICER, WARD-6(3)(2), BENGALURU APPELLANT RESPONDENT APPELLANT BY : SHRI V SRINIVASAN, ADVOCATE RESPONDENT BY : SMT. R PREMI, JCIT (DR) DATE OF HEARING : 11.12.2019 DATE OF PRONOUNCEMENT : 11.12.2019 O R D E R PER B.R BASKARAN, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 7/12/2018 PASSED BY LD CIT(A) FOR ASST. YEAR 2011-1 2 BY EXAMINING THE APPEAL OF THE ASSESSEE IN LIMINE REFUSING TO CO NDONE THE DELAY IN FILING THE APPEAL BEFORE HIM. ITA NO.379 /BANG/2019 PAGE 2 OF 7 2. WE HEARD THE PARTIES AND PERUSED THE RECORD. TH E ASSESSEE HUF ALONG WITH OTHER FAMILY MEMBER ENTERED INTO A J OINT DEVELOPMENT AGREEMENT FOR DEVELOPMENT OF CERTAIN PR OPERTY WITH M/S S.V.S INFRASTRUCTURE. SINCE THE ASSESSEE DID N OT FILE RETURN OF INCOME, THE AO REOPENED THE ASST. BY ISSUING NOTICE U/S 148 OF THE ACT. IN RESPONSE THERETO THE ASSESSEE FILED A RETU RN OF INCOME DECLARING A TOTAL INCOME OF RS.192.36 LAKHS. HOWEV ER, THE AO COMPLETED THE ASST. BY DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT 273.46 LAKHS. THE ASSESSEE FILED THE APPEAL BEF ORE THE LD CIT(A) WITH A DELAY OF 375 DAYS. THE LD CIT(A) WAS NOT CON VINCED WITH THE EXPLANATIONS FURNISHED BY THE ASSESSEE FOR THE DELA Y. ACCORDINGLY HE DISMISSED THE APPEAL IN LIMINE. 3. AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL BE FORE US. 4. WE HEARD THE PARTIES AND PERUSED THE RECORD. WE NOTICED THAT THE REASONS CITED BY THE ASSESSEE FOR THE DELA Y IN FILING THE APPEAL BEFORE THE LD CIT(A) HAS BEEN DISCUSSED BY T HE FIRST APPELLATE AUTHORITY AS UNDER:- ALONG WITH THE APPEAL, THE APPELLANT HAS FILED A PETITION FOR CONDONATION OF DELAY IN FILING THE APP EAL. IN THE PETITION, THE APPELLANT,-HAS STATED THAT THE ASSESSMENT ORDER WAS RECEIVED BY IT ON 31/03/2015 AND ACCORDINGLY, THE APPEAL SHOULD HAVE BEEN FILED ON OR BEFORE 30/04/2015. HOWEVER, THE APPEAL WAS FILED ON 09/05/2016 AND THUS THERE WAS A DELAY OF 375 DAYS IN FILING THE APPEAL. THE APPELLANT HAS STATED THAT SOON AFTER RECEIPT OF THE ASSESSMENT ORDER, TH EY WERE ADVISED BY THEIR AUTHORISED REPRESENTATIVE, SH RI MAHESH BALIGERI AGAINST FILING THE APPEAL IN VIEW O F ITA NO.379 /BANG/2019 PAGE 3 OF 7 THE BINDING DECISION OF THE JURISDICTIONAL HIGH COU RT IN CIT VS. T.K.DAYALU AND ALSO BECAUSE THE ASSESSMENT WAS AN AGREED ASSESSMENT. THEREAFTER IN 2016 THEY WERE ADVISED BY ANOTHER CHARTERED ACCOUNTANT, SHRI VIJAY BHATIA THAT THE QUANTIFICATION OF CAPITAL GAI NS HAD BEEN WRONGLY DONE BY THE AO BASED ON THE ESTIMATED COST OF CONSTRUCTION AND THAT THE BANGALO RE ITAT HAD, IN THE CASE OF MIS SHARIKAR VITTHAL MOTOR CO. LTD. IN ITA NO. 35/1 3/IT DATED 18/03/2016, HELD THAT THE CAPITAL GAINS HAS TO BE COMPUTED ON THE BA SIS OF THE GUIDANCE VALUE OF THE LANDS TRANSFERRED. THEREFORE THE APPELLANT APPROACHED THE PRESENT AR WHO ADVISED THEM THAT AN APPEAL COULD BE FILED WITH AN APPLICATION FOR CONDONATION OF DELAY AND HENCE THEY FILED THE APPEAL LATE. 5. WE NOTICED THAT THE LD CIT(A) HAD ALSO DISMISSED THE APPEAL OF ONE OF THE CO-OWNERS OF THE PROPERTY NAMED P.V KRIS HNAPPA (HUF) IN LIMINE, WHEREIN ALSO IDENTICAL REASONS WERE GIV EN FOR THE DELAY IN FILING APPEAL BEFORE HIM. THE ABOVE CITED P.V KRIS HNAPPA (HUF) HAD PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND THE COO RDINATE BENCH OF THE TRIBUNAL, VIDE ITS ORDER DATED 28.8.2009 PASSED IN ITA NO.380/BANG/2009, HAS CONDONED THE DELAY AND RESTOR ED THE APPEAL TO THE FILE OF THE LD CIT(A) FOR ADJUDICATIN G THE GROUNDS ON MERIT. 6. WE ARE OF THE VIEW THAT THE DECISION TAKEN BY TH E COORDINATE BENCH IN THE ABOVE SAID CASE CAN BE CONVENIENTLY FO LLOWED IN THIS CASE, AS THE FACTS SURROUNDING THE CASE AS WELL AS REASONS GIVEN BY BOTH THE ASSESSEES FOR THE DELAY IN FILING APPEAL A RE IDENTICAL. FOR THE SAKE OF CONVENIENCE WE EXTRACT BELOW OPERATIVE PORTION OF THE ORDER PASSED BY THE COORDINATE BENCH IN THE CASE OF P.V KRISHNAPPA (HUF) REFERRED (SUPRA). ITA NO.379 /BANG/2019 PAGE 4 OF 7 4.4 WE HAVE HEARD AND CONSIDERED THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD IN RESPECT O F THE MATTER OF NON-CONDONATION OF DELAY OF 375 DAYS IN FILING THE APPEAL BEFORE THE CIT(A)-6, BANGALORE. I T IS APPARENT THAT THE CIT(A) HAS NOT ADJUDICATED THE ASSESSEE'S APPEAL ON MERITS, BUT DISMISSED IT, IN LIMINE, BY NOT CONDONING THE DELAY IN FILING THE AP PEAL. THE ULTIMATE OBJECT OF ASSESSMENT PROCEEDINGS IS TH AT THE TRUE AND CORRECT INCOME OF THE ASSESSEE BE BROU GHT TO TAX. IT IS UNLIKELY THAT THE ASSESSEE WOULD HAVE DELIBERATELY OR INTENTIONALLY FILED THE APPEAL BEFO RE THE CIT(A), BELATEDLY, ESPECIALLY WHEN IT IS SADDLED WI TH TAX DEMAND OF RS. 1,08,29,512/-. TAKING INTO ACCOUN T THE PRINCIPLES LAID DOWN BY THE HON'BLE APEX COURT IN THE CASE OF MST KATIJI AND OTHERS (SUPRA), WHEREIN THE HON'BLE APEX COURT LAID DOWN THE PRINCIPLES FOR DEALING WITH MATTERS RELATING TO CONDONATION OF DEL AY; THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF ISRO SATELLITE CENTRE (SUPRA); THE DECI SION OF THE CO-ORDINATE BENCH IN THE CASE OF SHAKUNTALA HEGDE L/R R. K. HEGDE (SUPRA) AND THE REASONS ADDUCED BY THE ASSESSEE IN ITS PETITION SEEKING CONDONATION OF DELAY (SUPRA), WE ARE OF THE VIEW TH AT THE ASSESSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE FROM FILING THE APPEAL FOR ASSESSM ENT YEAR 2011-12 ON TIME BEFORE THE CIT(A)-6, BANGALORE . IN THIS VIEW OF THE MATTER AND RESPECTFULLY FOLLOWI NG THE PRINCIPLES LAID DOWN BY THE HON'BLE APEX COURT IN THE CASE OF MST KATIJI AND OTHERS (SUPRA), WE CONDO NE THE DELAY OF 375 DAYS BY THE ASSESSEE IN FILING THE APPEAL BEFORE THE CIT(A). SINCE IT IS EVIDENT THAT THE ASSESSEE'S APPEAL HAS BEEN DISMISSED BY THE CIT(A) ONLY ON TECHNICAL GROUNDS; BY NON-CONDONATION OF DELAY IN FILING THE APPEAL; AND NOT ADJUDICATED THE MERITS OF THE ISSUES RAISED IN THE APPEAL BEFORE HE R, THE IMPUGNED ORDER OF CIT(A)-6, BANGALORE DATED 07.12.2018 FOR ASSESSMENT YEAR 2011-12 IS SET ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE CIT(A ) FOR ADJUDICATION ON MERITS. NEEDLESS TO ADD, THE CIT(A) SHALL AFFORD THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD AND TO FILE SUBMISSIONS / DETAILS REQUI RED; ITA NO.379 /BANG/2019 PAGE 5 OF 7 WHICH SHALL BE DULY CONSIDERED BEFORE DECIDING THE APPEAL. IT IS ACCORDINGLY ORDERED. CONSEQUENTLY, TH E OTHER GROUNDS RAISED ON MERITS IN THIS APPEAL (SUPR A) ARE NOT REQUIRED TO BE ADJUDICATED AT THIS STAGE. 7. CONSISTENT WITH THE VIEW TAKEN IN THE ABOVE SAID CASE, WE CONDONE THE DELAY IN FILING THE APPEAL BEFORE LD CI T(A). SINCE THE LD CIT(A) HAS NOT ADJUDICATED THE ISSUES ON MERITS, WE SET ASIDE THE ORDER PASSED BY THE LD CIT(A) AND RESTORE ALL ISSUE S TO HIS FILE FOR ADJUDICATING THEM AFRESH, AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH DECEMBER, 2019. SD/ - (PAVAN KUMAR GADALE) JUDICIAL MEMBER SD/ - (B.R BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED, THE 11 TH DECEMBER , 2019. /VMS/ ITA NO.379 /BANG/2019 PAGE 6 OF 7 COPY TO: 1. APPELLANT (S) / CROSS OBJECTOR(S) 2. RESPONDENT(S) 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE ITA NO.379 /BANG/2019 PAGE 7 OF 7 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DICTATION NOTE ENCLOSED DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. .. 14. DICTATION NOTE ENCLOSED