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

ITA 380/BANG/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 2672 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 01-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKAS SURYAVAMSHI
• Keywords: Opportunity of being heard; Condonation of delay; Set aside
• Section: 143(3); 54F; 147; 148; 12; 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N. V. VASUDEVAN, VICE PRESIDENT AND SHRI JASON P BOAZ , ACCOUNTANT MEMBER ITA NO. 380 /BANG/201 9 ASSESSMENT YEAR S : 20 1 1 - 1 2 SHRI P. V. KRISHNAPPA [HUF], BEHIND MARAMMA TEMPLE, B. B. RAOD, AMRUTHAHALLI, BENGALURU - 560 092. PAN : AQQPP 9234 F VS. INCOME TAX OFICER, WARD 6(3)(2), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI NARENDRA SHARMA, ADVOCATE REVENUE BY : SHRI. VIKAS SURYAVAMSHI, ADDL. CIT DATE OF HEARING : 0 8 . 0 7 .201 9 DATE OF PRONOUNCEMENT : 28 . 0 8 .201 9 O R D E R PER SHRI JASON P BOAZ, A.M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-6, BANGALORE, DATED 07.12.2018 FOR ASSESSMENT YEAR 2011-12 DISMISSING THE ASSESSEES APPEAL IN LIMINE BY NOT CONDONING THE DELAY IN FILING THE APPEAL 2. BRIEFLY STATED, THE FACTS RELEVANT FOR DISPOSAL FOR DISPOSAL OF THIS APPEAL ARE AS UNDER:- 2.1 THE ASSESSEE HUF DID NOT FILE THE RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12. ON THE BASIS OF INFORMATION THAT THE ASSESSEE ALONG WITH OTHER FAMILY ITA NO. 380/BANG/2019 PAGE 2 OF 9 MEMBERS ENTERED INTO A JOINT DEVELOPMENT AGREEMENT (JDA) WITH M/S. SVS INFRASTRUCTURES ON 15.09.2010 FOR LAND SITUATED AT SY. NO.13, AMRUTHAHALLI VILLAGE, YELAHANKA HOBLI, BENGALURU NORTH MEASURING 3.39 ACRES, THE ASSESSING OFFICER (AO) INITIATED PROCEEDINGS, UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) AND ISSUED NOTICE UNDER SECTION 148 OF THE ACT TO THE ASSESSEE ON 05.02.2014. IN RESPONSE THERETO, THE ASSESSEE FILED THE RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 17.03.2015 DECLARING INCOME OF RS.1,98,67,500/-. THE ASSESSMENT WAS CONCLUDED UNDER SECTION 143(3) R.W.S 147 OF THE ACT VIDE ORDER DATED 31.03.2015 WHEREIN THE ASSESSEES INCOME WAS DETERMINED AT RS.2,68,65,354/- ; BEING THE CAPITAL GAINS (LTCG) ARISING TO THE ASSESSEE AFTER ALLOWING EXEMPTION OF RS.18,40,300/- UNDER SECTION 54F OF THE ACT AND THEREBY RAISING DEMAND OF RS.1,08,29,512/-. 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT DATED 31.03.2015 FOR ASSESSMENT YEAR 2011-12, THE ASSESSEE FILED AN APPEAL BEFORE CIT(A)-6, BENGALURU, ON 09.05.2016; WHICH WAS FILED BELATEDLY BY 375 DAYS. AFTER HEARING THE ASSESSEE IN THE MATTER, THE CIT(A) DISMISSED THE ASSESSEES APPEAL IN LIMINE AS SHE WAS OF THE VIEW THAT THERE IS NO BASIS TO CONSIDER CONDONATION OF THE AFORESAID DELAY OF 375 DAYS. 3. BEING AGGRIEVED BY THE ORDER OF CIT(A)-6, BENGALURU, DATED 07.12.2018; WHEREBY THE ASSESSEES APPEAL WAS DISMISSED IN LIMINE, THE ASSESSEE HAS PREFERRED THIS APPEAL WHEREIN IT HAS RAISED THE FOLLOWING GROUNDS:- ITA NO. 380/BANG/2019 PAGE 3 OF 9 ITA NO. 380/BANG/2019 PAGE 4 OF 9 ITA NO. 380/BANG/2019 PAGE 5 OF 9 4. GROUND NOS.2 TO 2.6 NON CONDONATION OF DELAY OF 375 DAYS IN FILING APPEAL FOR ASSESSMENT YEAR 2011-12 BEFORE CIT(A). 4.1 AT THE OUTSET, THE LEARNED AR FOR THE ASSESSEE SUBMITTED THAT THERE WAS A DELAY OF 375 DAYS IN FILING THE APPEAL BEFORE THE CIT(A)-7, BANGALORE. IT IS SUBMITTED THAT A PETITION SEEKING CONDONATION OF DELAY WAS FILED BY THE ASSESSEE ALONG WITH THE APPEAL, PRAYING THAT THE DELAY BE CONDONED. THE REASONS FOR DELAY IN FILING THIS APPEAL HAVE BEEN EXPLAINED BEFORE THE CIT(A) IN THE PETITION AT PARAS 1 TO 9 THEREOF, WHICH ARE EXTRACTED HEREUNDER:- ITA NO. 380/BANG/2019 PAGE 6 OF 9 ITA NO. 380/BANG/2019 PAGE 7 OF 9 4.2 BEFORE US, IT WAS PRAYED THAT THE DELAY OF 375DAYS IN FILING THE APPEAL BE CONDONED IN KEEPING WITH THE PRINCIPLES LAID DOWN BY THE HONBLE APEX COURT IN MST KATIJI AND OTHERS (1987) 167 ITR 471 (SC); THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. ISRO SATELLITE CENTRE (2013) 263 ITR 549 (KAR) WHERE DELAY OF 5 YEARS WAS CONDONED BY THE HONBLE HIGH COURT AND THE DECISION OF THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SHAKUNTALA HEGDE, L/R OF R. K. HEGDE IN ITA NO.2785/BANG/2004 WHERE DELAY OF 1831 DAYS WAS CONDONED. 4.3 THE LEARNED DR FOR REVENUE OPPOSED THE ASSESSEES PLEA FOR CONDONATION OF DELAY AND VEHEMENTLY SUPPORTED THE IMPUGNED ORDER OF THE CIT(A). 4.4 WE HAVE HEARD AND CONSIDERED THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD IN RESPECT OF THE MATTER OF NON-CONDONATION OF DELAY OF 375 DAYS IN FILING THE APPEAL BEFORE THE CIT(A)-6, BANGALORE. IT IS APPARENT THAT THE CIT(A) HAS NOT ADJUDICATED THE ASSESSEES APPEAL ON MERITS, BUT DISMISSED IT, IN LIMINE, BY NOT CONDONING THE DELAY IN FILING THE APPEAL. THE ULTIMATE OBJECT OF ASSESSMENT PROCEEDINGS IS THAT THE TRUE AND CORRECT INCOME OF THE ASSESSEE BE BROUGHT TO TAX. IT IS UNLIKELY THAT THE ASSESSEE WOULD HAVE DELIBERATELY OR INTENTIONALLY FILED THE APPEAL BEFORE THE CIT(A), BELATEDLY, ESPECIALLY WHEN IT IS SADDLED WITH TAX DEMAND OF RS.1,08,29,512/-. TAKING INTO ACCOUNT THE PRINCIPLES LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF MST KATIJI AND OTHERS (SUPRA), WHEREIN THE HONBLE APEX COURT ITA NO. 380/BANG/2019 PAGE 8 OF 9 LAID DOWN THE PRINCIPLES FOR DEALING WITH MATTERS RELATING TO CONDONATION OF DELAY; THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF ISRO SATELLITE CENTRE (SUPRA); THE DECISION 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 THAT THE ASSESSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE FROM FILING THE APPEAL FOR ASSESSMENT YEAR 2011-12 ON TIME BEFORE THE CIT(A)-6, BANGALORE. IN THIS VIEW OF THE MATTER AND RESPECTFULLY FOLLOWING THE PRINCIPLES LAID DOWN BY THE HONBLE APEX COURT IN THE CASE OF MST KATIJI AND OTHERS (SUPRA), WE CONDONE THE DELAY OF 375 DAYS BY THE ASSESSEE IN FILING THE APPEAL BEFORE THE CIT(A). SINCE IT IS EVIDENT THAT THE ASSESSEES 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 HER, 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 REQUIRED; WHICH SHALL BE DULY CONSIDERED BEFORE DECIDING THE APPEAL. IT IS ACCORDINGLY ORDERED. CONSEQUENTLY, THE OTHER GROUNDS RAISED ON MERITS IN THIS APPEAL (SUPRA) ARE NOT REQUIRED TO BE ADJUDICATED AT THIS STAGE. 5. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2011-12 IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF AUGUST, 2019. SD/- SD/ - SD/ - (N. V. VASUDEVAN) VICE PRESIDENT (JASON P BOAZ) ACCOUNTANT MEMBER BANGALORE. DATED: 28 TH AUGUST, 2019. /NS/* ITA NO. 380/BANG/2019 PAGE 9 OF 9 COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.