Navinbhai Lavajibhai Patel, Surat V. Income Tax Officer Ward- 2(3)(6), Surat

ITA 407/SRT/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 0978 (ITAT-SURAT)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-07-2024
• Assessment Year: 2014-2015
• Appeal Filed On: 09-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 56(2)(vii)(b)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER ITA No. 407/Srt/2024 (Assessment Year 2014-15) (Physical hearing) Manjulaben Navinbhai Patel L/H -Navinbhai Lavajibhai Patel, 1/615, Village-Bhatpore, Taluka- Choryasi, Dist-Surat-394510 (Gujarat) PAN No. BNRPP 6477 M Vs. I.T.O., Ward-2(3)(6) Surat. Appellant/ assessee Respondent/ revenue Assessee represented by Shri Rajesh Upadhyay, A.R. Department represented by Shri Vinod Kumar, Sr. DR Date of Institution of Appeal 10/04/2024 Date of hearing 08/07/2024 Date of pronouncement 09/07/2024 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the legal heir i.e. wife of assessee is directed against the order of learned National Faceless Appeal Centre, Delhi (NFAC)/Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A)) dated 17/01/2024 for the Assessment Year (AY) 2014-15, wherein the assessee has raised following grounds of appeal: “1. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to dismiss appellant’s appeal ex parte and that too without going into the merits of the case. 2. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to pass appeal order in the name of dead person namely Navinbhai Lavajibhai Patel. 3. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to confirm A.O.’s addition of Rs. 79,19,168/- by considering DVO’s Report in estimating the value of land as on 01/04/1981 at Rs. 20.88 per sq. Mtr. instead of taking value of RVO at Rs. 180 per Sq. Mtr. 4. Ld. CIT(A), NFAC, Delhi has erred in law and on fact to confirm A.O.’s addition of Rs. 1,36,800/- u/s 56(2)(vii)(b) of the Act ignoring and ITA No. 407/Srt/2024 Manjulaben Navinbhai Patel Vs ITO 2 overlooking the fact and law that the said provisions are inapplicable for a transaction of immovable property being Agriculture Land.” 2. Rival submissions of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee submits that there is 24 days’ delay in filing appeal before the Tribunal. The legal heir of assessee has filed her affidavit in support of condonation of delay. The ld. AR of the assessee submits that the appellant is an old lady/senior citizen living in a remote village. Husband of appellant died before passing the assessment order. As per the instruction of assessee, the Assessing Officer was informed about the death of her husband, however, the assessment order was passed in the name of dead person. First appeal was filed through Kishorbhai Patel, Advocate who is in tax practice. Kishorbhai Patel has given his own e-mail address at the time of filing appeal before the ld. CIT(A). However, the assessee was not informed about dismissal of appeal in time. The ld. AR of the assessee submits that the assessee is a villager but a law abiding citizen and repeatedly pursued with his consultant/advocate to take appropriate step for filing further appeal. The matter was handed over to the present representative in second week of April, 2024 and the appeal was filed immediately. Though, in the meantime, the time period of filing appeal was lapsed. The ld. AR of the assessee submits that the delay in filing appeal is neither intentional nor deliberate. The assessee will suffer irreparable loss and injury without being no fault on her part. The ld. AR of the assessee submits that there is no intentional or deliberate delay in filing appeal. The delay in filing appeal may be condoned and the matter may be considered on merit. ITA No. 407/Srt/2024 Manjulaben Navinbhai Patel Vs ITO 3 3. On merit of the case, the ld. AR of the assessee submits that the husband of assessee died on 15/06/2014. Such fact was communicated by appellant through Advocate before passing the assessment order. The assessment order was passed on 22/12/2016. The Assessing Officer while passing the assessment order, made addition of Long term capital gain (LTCG) Rs. 79,19,168/- on account of difference of valuation of land sold by assessee vis a vis value adopted on the basis of report of Government Registered valuer and value determined by Departmental Valuation Officer (DVO) as on 01.04.1981. The Assessing Officer also made addition under Section 56(2)(vii)(b) of Rs. 1,36,800/- on account of sale consideration shown by assessee and the value of lands determined by stamp valuation authority on purchase of two piece of land. The Assessing Officer made addition for want of proper representation. The ld. CIT(A) confirmed the addition in an ex parte order by taking view that despite giving numerous opportunity, no response was made by assessee. The ld. AR of the assessee submits that the assessee is a poor lady residing in a village and had to take legal recourse of law through advocate who has given his own e-mail address but neither the assessee was informed by the said advocate nor any submission was filed. The appellant has suffered order on account of negligence on the part of his consultant. The ld. AR of the assessee further reiterated that the appellant is a legal heir of assessee who died much before passing the assessment order. The assessee may be allowed to contest the case on merit and matter may be restored back to the file of ld CIT(A) or Assessing Officer with the liberty to the assessee to filed required details and evidence to substantiate her claim. ITA No. 407/Srt/2024 Manjulaben Navinbhai Patel Vs ITO 4 4. On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue on the plea of condonation of delay submits that the Bench may take appropriate view as per law. However, on merit, the ld. Sr. DR for the revenue submits that it seems that the appellant has never informed the lower authorities about death of assessee either before passing the assessment order or during the first appellate proceedings. As per record, Form No. 35 supplied to him, the appeal is verified by assessee. There is no averment either in the statement of fact or otherwise that assessee died. In the application/communication filed by assessee on record as per page No. 28 of the paper book, there is no acknowledgement of Assessing Officer nor it bears the date, when it was filed. The ld. Sr. DR for the revenue submits that in case, the Bench is of the view that the appellant deserves any relief, the matter may be restored to the file of ld. CIT(A) for considering the matter afresh. 5. We have considered the submissions of both the parties and perused the material on record carefully and have also gone through the contents of application of condonation of delay and the affidavit of the assessee. We find that the impugned order was passed by the ld. CIT(A) on 17/01/2024, however, the present appeal is filed on 10/04/2024, thus, there is a delay of 24 days in filing appeal before the Tribunal. Before us, the appellant has filed her affidavit explaining the cause of delay. The ld. AR of the assessee before us explained that there is no intentional or deliberate delay on the part of appellant rather the appellant was not informed by his earlier consultant/advocate who has given his own e-mail address while filing appeal ITA No. 407/Srt/2024 Manjulaben Navinbhai Patel Vs ITO 5 before the ld. CIT(A). Considering the overall facts and circumstances of the case and the fact that the appeal was filed after death of assessee though it was verified in the name of assessee. We are conscious of the fact that in e- filing of appeals, the appellant is not required to verify the statement of appeal by putting physical signature, rather it has to be verified through electronical signature or by OTPs, but the present appeal is verified due to ignorance or otherwise may have verified in the name of deceased assessee. However, the real fact is that the assessee died six months prior to passing of assessment order. Therefore, considering overall facts of the case we find that the delay in filing appeal is neither intentional or deliberate, hence the delay of 24c days in filing appeal is condoned. Now adverting to the merits of the case. 6. We find that the Assessing Officer made huge addition of LTCG of Rs. 79,19,168/- on account of difference of value of asset shown as on 01.04.1981 on the basis of Government Registered valuer and the value suggested by DVO. The Assessing Officer also made addition of Rs. 1,36,800/- under section 56(2)(vii(b) on account of difference of consideration shown by the assessee and the value determined by stamp valuation authority on purchase of two property during the year under consideration. The ld. CIT(A) confirmed the action of Assessing Officer in ex parte proceeding. Considering the fact that the appellant is an old lady being a legal heir of assessee and addition in the assessment order was substantially made for want of proper representation, therefore, the matter is restored back to the file of ld CIT(A) to pass the order afresh after giving reasonable and fair opportunity of hearing to the appellant/assessee. The Assessing Officer to verify if the legal heir informed ITA No. 407/Srt/2024 Manjulaben Navinbhai Patel Vs ITO 6 the Assessing Officer the then about the death of assessee or not and to take corrective measure for bringing legal heir on record. The appellant/legal heir of assessee is also directed to be more vigilant in future and not to cause further delay by seeking adjournment without any valid reason and to furnish all the details and her submissions and evidences on various grounds of appeal raised, as soon as possible, if so desired without any further delay. In the result, the grounds of appeal raised by the appellant/assessee are allowed for statistical purposes. 7. In the result, this appeal of appellant/assessee is allowed for statistical purpose. Order announced in open court on 09 th July, 2024. Sd/- Sd/- (BIJAYANANDA PRUSETH) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 09/07/2024 *Ranjan Copy to: 1. Assessee – 2. Revenue – 3. CIT 4. DR By order 5. Guard File Sr. Private Secretary, ITAT, Surat