MOMINA SHEIKH, JAIPUR V. ITO Ward-3(2), JAIPUR

ITA 381/JPR/2023

AI Insights

This case involves an appeal by Momina Sheikh against the order of the National Faceless Appeal Centre (NFAC) which dismissed her appeal due to a delay in filing beyond the statutory time limit. The original assessment was made under sections 147 and 148 of the Income Tax Act, concerning the reassessment of income for the assessment year 2010-11, based on the sale of a property share. The ITAT found that the assessee was not provided adequate opportunity to be heard, as required by principles of natural justice, and thus restored the matter to the AO for a fresh assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132175 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-09-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 14-06-2023
• Other Referred Cases: Vedabhai alias Vaijayantabai Baburao Patil VS. Shantaram Baburao Patil [2002] reported in 122 Taxman 114
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 147; 144; 142(1); 250; 251

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 Mk0 ,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-@ITA No. 381/JPR/2023 fu/kZkj.k o"kZ@Assessment Years : 2010-11 Momina Sheikh 374, Kamla Nehru Nagar, Hasanpur C, Jaipur. cuke Vs. ITO, Ward-3(2), Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.: KUBPS 7227 E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assessee by : Shri Ashish Khandelwal (C.A.) jktLo dh vksjls@Revenue by: Shri A.S. Nehra (Addl.CIT) lquokbZ dh rkjh[k@Date of Hearing :06/09/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 08/09/2023 vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal is filed by the assessee against the order of the National Faceless Appeal Centre, Delhi [herein after referred to as "NFAC/ld. CIT(A)"] dated 28.04.2023 for the assessment year 2010-11. 2. The assessee has raised the following grounds of appeal:- "1. That the Id. CIT(A) has erred in law as well in facts of the case in dismissing the appeal solely on account of delay in filing of appeal beyond 2 ITA No. 381/JPR/2023 Momina Sheikh vs. ITO statutory time limit of 30 days overlooking compelling circumstances which prevented time filing of appeal. 2. That the Id. CIT(A) has erred in law as well in facts in not disposing appeal on merits & acting in haste overlooking the adjournment request filed on 27.04.2023. 3. That the ld. CIT(A) as well as AO grossly erred in law in not appreciating that notice u/s 148 as well as assessment u/s 147 was issued/completed in the name of deceased and therefore same was nullity in eyes of law. 4. That the Id. AO has erred in law as well in fact of the case in assuming jurisdiction u/s 148 of the Act. 5. That the ld. AO has erred in law as well in facts of the case in making addition of Rs. 8540550/- as long term capital gain." 3. Brief facts of the case are that the assessee did not file his return of income. The case was reopened u/s 147 of the I.T. Act on the basis of information that during the year under consideration, the assessee and others have sold their share being 6.77% in the immovable property situated at Khasra No. 10 & 11 at Badodia, Opp. Hotel Rajputana Sheraton, Station Road, Jaipur. While registering the above transaction the Sub-Registrar V, Jaipur has determined the value of transaction for Rs. 2,28,27,608/- and the share of the assessee in the said transaction comes to 40%. Accordingly, the AO issued notice u/s 148 of the 1.T Act on 31.03.2017 and duly served upon the assessee. However, there was no compliance from the assessee. Thereafter the AO issued various notices u/s 142(1) show cause letters to 3 ITA No. 381/JPR/2023 Momina Sheikh vs. ITO the assessee. However, the assessee failed to comply to all the notices issued by the AO. As the assessee failed to comply to all the statutory notices issued, the AO after considering the facts and circumstances of the case, completed the assessment u/s 148/144 of the IT Act on 16.12.2017 determining the total income of Rs. 85,40,550/- after making an addition of Long Term Capital Gain of Rs. 85,40,550/- . 4. Being aggrieved by the order of the AO, the assessee filed an appeal before the ld. CIT(A). The Ld. CIT(A) observed that notices were issued on 18.03.2021, 17.04.2023 and 24.04.2023 requiring the assessee to file the details in support of grounds taken by the assessee. Since the assessee has not complied with the notices issued by the Id. CIT(A) but he has dismissed the appeal of the assessee ex-parte order. The extract of the order of the ld. CIT(A) is reproduced as under:- “5.1 I have duly considered the facts of the case, the order of AO and the grounds uploaded by the appellant. The grounds of appeal raised by the appellant are adjudicated in the subsequent paras. 5.2 The facts of the case and the grounds raised by the appellant have been considered carefully. It is noticed there has been a delay of 117days in filing of this appeal by the assessee. The appeal is to be filed within 30 days of the date of the service of the order. During the appellate proceedings, it is found from the Form No. 35, the appellant filed the appeal on 04/02/2019 whereas the date of order u/s 148/144 of the IT is 16/12/2017 and date of service is 10/09/2018. As per the dates given in Form 35 it appears that the appeal is filed beyond the prescribed due date by 30 days. The appellant has explained the reasons for the delay in filing of appeal. The relevant portion in this respect is being reproduced as under: 4 ITA No. 381/JPR/2023 Momina Sheikh vs. ITO "The delay of 118 days in filing the appeal is unintentional, bonafide and beyond the control of the appellant. The appellant i.e Shri Sharafat Hussain died even before the commencement of 148 proceedings without possessing PAN. Therefore, PAN of the spouse as a Legal heir of deceased appellant was applied but too add to misfortune the PAN was allotted in individual capacity of spouse. The L/H of appellant tried best efforts so as to file appeal through e-mail but on failure of same, decided to file in manual mode. The delay in filing the appeal may kindly be condoned considering the compelling circumstances of the case and oblige." 5.3 The arguments of the appellant cannot be accepted. There is a lapse on the part of the assessee regarding filing of the appeal within stipulated time. This shows that there is a delay of filing of the appeal in terms of section 249 (2) of the Act. In such a situation section 249(2) of the Act envisages that there should be sufficient cause for not prosecuting the appeal within the period prescribed. 5.4 From the factual position which emerges it appears that a conscious and considered decision was taken by the assessee at the relevant point of time for not filing of appeal against the impugned order. It is well-settled law that a distinction must be made between a case where the delay is inordinate and where the delay is of few days only. The inordinate delay in the instant case clearly demonstrates that these appeals were not prosecuted with due care. 5.5 On the issue of a routine delay and an inordinate delay, the Hon'ble Supreme Court in the case of Vedabhai alias Vaijayantabai Baburao Patil VS. Shantaram Baburao Patil [2002] reported in 122 Taxman 114, has made a distinction between delays that are trivial and cases where inordinately large delays had occurred. The Hon'ble Supreme Court further held that the cases of trivial delays have to be liberally considered, however the cases of inordinate delays have to be approached cautiously. The relevant portion of the order of the Hon'ble Supreme Court is reproduced as under: - "In exercising discretion, under section 5 of the Limitation Act the courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former case, the consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard." 5.6 In view of the above detailed discussion, it is held that the appellant has no "sufficient cause" in terms of section 249(3) of the Act, for not presenting the appeal within the prescribed period. It is well-settled law that an appellant is not entitled to the condonation as a matter of right. 5 ITA No. 381/JPR/2023 Momina Sheikh vs. ITO 5.7 For an appellant to succeed, the existence of sufficient cause is sine qua non and a condition precedent. It is manifestly evident that this ingredient is woefully lacking in this belated appeal filed by the appellant. Thus, the delay in filing the appeal by the appellant, is not considered. Accordingly, the appeal is dismissed without any discussion on merits or on any other aspect. 6. In the result, the present appeal fails since the delay in filing of appeal. Accordingly, the appeal of the assessee is treated as dismissed u/s. 250 r.w.s. 251 of the Act without considering the merits of the appeal filed.” 5. During the course of hearing, the ld. AR for the assessee prayed that the Id. CIT(A) and the AO has passed the ex-parte order and the assessee was not provided adequate opportunity of being heard. Thus, the assessee may be provided one more opportunity to advance his arguments/submissions before the ld. AO in the interest of equity and justice. 6. Per contra, the ld. DR supported the orders of the lower authorities praying that the assessee was provided various opportunities by the lower authorities to argue the case but the assessee was lethargic and unserious to pursue her case and thus the order passed by the ld. CIT(A) should be sustained. 6 ITA No. 381/JPR/2023 Momina Sheikh vs. ITO 7. We have heard both the parties and perused the materials available on record. The Bench observed that the assessee was really lethargic and unserious in pursuing her case in spite of providing various opportunities by the Id. CIT(A) and Id. AO as mentioned in his order. The assessee did not appear or filed any reply to the notices which were issued by the ld. AO during the assessment proceedings, finally the assessee completed ex-parte assessment u/s 144 of the Act on 16.12.2017. Further, we observed that the assessee or her legal representative did not appear even in appellate proceedings in spite of several notices as it is evident from the ld. CIT(A) order. Before us, Ld. AR for the assessee submitted evidence to support her claim, that the assessee has filed adjournment application on 27.04.2023 for the notice issued on 24.04.2023 for collection of necessary documents and attached Form 35 and the assessment though e proceedings response acknowledgment, but the ld. CIT(A) has not considered the adjournment application, passed order on 28.04.2023. The relevant portion in e proceedings response acknowledgement which is reproduced as under:- 7 ITA No. 381/JPR/2023 Momina Sheikh vs. ITO 8 ITA No. 381/JPR/2023 Momina Sheikh vs. ITO However, the Bench feels that the assessee because of any reasons could not advance her arguments/ submissions to contest the case before the lower authorities and the ld. AR for the assessee also prayed to give one more opportunity to submit the evidences concerning the issue in question, with grounds so raised by the assessee, to decide it afresh by providing one more opportunity of hearing, however, the assessee will not seek any adjournment on frivolous ground and remain cooperative during the course of proceedings before the ld. AO. 8. Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the ld. AO independently in accordance with law. In the result, the appeal of the assessee is allowed for statistical purposed. Order pronounced in the open court on 08/09/2023. Sd/- Sd/- ¼jkBksM deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 08/09/2023 *Santosh vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Momina Sheikh, Jaipur. 2. izR;FkhZ@ The Respondent- ITO, Ward-3(2), Jaipur. 9 ITA No. 381/JPR/2023 Momina Sheikh vs. ITO 3. vk;dj vk;qDr@ The ld CIT 4. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 5. xkMZQkbZy@ Guard File ITA No. 381/JPR/2023) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asstt. Registrar