TAPENDRA SINGH, MUMBAI V. ITO 17(3)(4), MUMBAI

ITA 4363/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2020 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 03-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBODH RATNAPARKHI
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Reasonable cause
• Section: 143(3); 50C; 201; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI MANOJ KUMAR AGGARWAL , HON'BLE ACCOUNTANT MEMBER ITA NO. 4363 /MUM/201 8 (A.Y: 2011 - 12 ) SHRI TAPENDRA SINGH 503, PUSHPA KUNJ, A ROAD CHURCHGATE, MUMBAI 400 020 PAN: ACPPS1095Q V. INCOME TAX OFFICER 17(3)(4) ROOM NO. 115 AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUBODH RATNAPARKHI DEPARTMENT BY : SHRI MAURYA PRATAP DATE OF HEARING : 03.12.2019 DATE OF PRONOUNCEMENT : 03.12.2019 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 28, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 26.03.2018 F OR THE ASSESSMENT YEAR 20 11 - 12. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN ITS APPEAL: - 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW , THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING ADDITION BY THE LEARNED A.O. OF .8,92,15,100/ - UNDER THE HEAD LONG TERM CAPITAL GAIN. 2 ITA NO.4363/MUM/2018 (A.Y: 2011 - 12) SHRI TAPENDRA SINGH 2) ON FACTS, IN CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN CONFIRMING THE INVOKING PROVISIONS OF SECTION 50C BY THE LEARNED A.O. 3 ) THE AP PELLANT CRA VES LEAVE TO ADD, AMEND, MODIFY OR DELETE THE ABOVE GROUNDS OF APPEAL. 3. THERE IS A DELAY OF 28 DAYS IN FILING THE APPEAL BY THE ASSESSEE AND THE ASSESSEE I N ITS PET ITION SUPPORTED BY THE AFFIDAVIT EXPLAINED THE REASONS FOR THE DELAY IN FILING TH E APPEAL AS UNDER: - 1. I AM ASSESSED TO TAX BY I.T.O. 17(3)(4), MUMBAI BASED ON MY ADDRESS AT 503, PUSHPA KUNJ, 'A' ROAD, CHURCHGATE, MUMBAI - 400020. HOWEVER, I AM CURRENTLY RESIDING AT MY RESIDENCE AT HYDERABAD AS MENTIONED ABOVE. 2. I FILED MY RETURN OF INCOME ON 18.10.2014 DECLARING TOTAL INCOME OF RS. 14,98,830/ - . MY ASSESSMENT WAS COMPLETED U/S 143(3) R. W. S. 147 OF I. T. ACT, 1961 ('THE ACT') ON 30 - 03 - 2015 ASSESSING TOTAL INCOME OF RS. 9,07,13,930/ - . THE LEARNED A.O. ASSESSE D LONG TERM CAPITAL GAIN AT RS. 9,01,76,250/ - AGAINST THE AMOUNT OF RS. 9,61,149/ - RETURNED BY ME. 3. I PREFERRED APPEAL TO LEARNED CIT - A AGAINST THE ABOVE ADDITION. THE APPEAL WAS FIXED FOR HEARING ON 09.02.2018 AND THE SAME WAS ADJOURNED TO 09.03.2018. DURING R ELEVANT TIME I WAS STAYING AT MY HYDERABAD RESIDENCE AND WAS DIAGNOSED WITH SLIP DISC OF L4 & L5 SPINE. I SUFFERED FROM ACUTE PAIN AND WAS ADVISED COMPLETE BED REST. ACCORDINGLY, I WROTE VARIOUS EMAILS TO LEARNED COMMISSIONER OF INCOME TAX - APPEALS ON 08.0 3.2018, 15.03.2018, 20.03.2018, 23.03.2018 TO ADJOURN HEARING ATTACHING MEDICAL CERTIFICATE FROM LANDMARK HOSPITAL SITUATED AT H. NO. 1210, BLOCK 2 - C, MIYAPUR HYDERABAD. THE LEARNED CIT - A REJECTED MY REQUEST FOR ADJOURNMENT AND PASSED ORDER DATED 26.03.201 8 DECIDING APPEAL ON THE BASIS OF MATERIAL ON RECORD WITHOUT GIVING ME SUFFICIENT OPPORTUNITY TO REPRESENT MY CASE. THE ORDER OF LEARNED CIT - A WAS SERVED AT MY RESIDENCE IN MUMBAI ON 06.04.2018 WHEN I WAS BASED IN HYDERABAD. 4. SINCE I WAS CONFINED TO BED AT HYDERABAD, I COULD NOT FILE APPEAL AGAINST THE ORDER OF LEARNED CIT - A TO HON. INCOME TAX APPELLATE TRIBUNAL. I CAME TO MUMBAI IN FIRST WEEK OF JUNE 2018 AND HANDED ORDER 3 ITA NO.4363/MUM/2018 (A.Y: 2011 - 12) SHRI TAPENDRA SINGH OF LEARNED CIT - A TO MY CHARTERED ACCOUNTANT. THEREAFTER MY CHARTERED ACCOUNTANT ADV ISED ME TO FILE THE APPEAL TO HON. INCOME TAX APPELLATE TRIBUNAL. THIS RESULTED IN DELAY IN FILING APPEAL BEFORE HON. INCOME TAX APPELLATE TRIBUNAL. 4. LD. DR OP POSED FOR CONDONATION OF DELAY. 5. ON A PERUSAL OF THE PETITION AND THE REASONS EXPLAINED THEREIN FOR THE DELAY IN FILING THE APPEAL , WE FIND THE ASSESSEE IS PREVENTED WITH REASONABLE CAUSE IN FILING THE APPEAL IN TIME. THE ASSESSEE COULD PROPERLY EXPLAIN THE DELAY IN FILING THE APPEAL AND THUS WE CONDONE THE DELAY OF 28 DAYS AND ADMIT THE APPEAL FOR DISPOSING OFF THE SAME ON MERITS . 6. COMING TO THE MERITS OF THE CASE, LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT LD.CIT(A) PASSED EXPARTE ORDER WITHOUT PROVIDING ADEQUATE OPPORTUNITY O F BEING HEARD TO THE ASSESSEE, T HEREFORE, REQUESTED TH AT THE MATTER MAY BE RESTORE D TO THE FILE OF THE LD.CIT(A). LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSEE FILED ADJOURNMENT PETITION EVEN ON THE LAST OCCASION I.E. 23.03.2018 WHEN THE MATTER HAS BEEN TAKEN UP AND THIS ADJOURNMENT WAS REJECTED BY TH E LD.CIT(A). 7. LD. DR HAS NO SERIOUS OBJECTION IN REMITTING THE MATTER BAC K TO THE FILE OF THE LD.CIT(A). 4 ITA NO.4363/MUM/2018 (A.Y: 2011 - 12) SHRI TAPENDRA SINGH 8. WE HAVE HEARD THE SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON A PERUSAL OF THE LD.CIT(A) ORDER , WE FIND THAT THE EVEN THOUGH THE LD.CI T(A) PROVIDED OPPORTUNITY ON SEVERAL OCCASIONS ASSESSEE COULD NOT APPEAR. CONSIDERING THE TOTALITY OF FACTS AND SUBMISSIONS OF THE LD. COUNSEL FOR THE ASSESSEE AND KEEPING IN VIEW THE ADDITIONS/DISALLOWANCE MADE BY THE ASSESSING OFFICER , WE ARE OF THE OPINION THAT ASSESSEE SHOULD BE GIVEN ONE MORE OPPORTUNITY OF BEING HEARD. THUS , THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) FOR D ENOVO ADJUDICATION IN ACCORDANCE WITH LAW . ASSESSEE SHALL COOPERATE WITH THE PROCEEDINGS BEFORE THE LD.CIT(A) WITHOUT TAKING UNNECESSARY ADJOURNMENTS. THUS , THIS APPEAL IS RESTORED TO THE FILE OF THE LD.CIT(A) ACCORDINGLY. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 03 RD DECEMBER , 2 019 SD/ - SD/ - ( MANOJ KUMAR AGGARWAL) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 03/ 12/ 201 9 GIRIDHAR , S R. PS 5 ITA NO.4363/MUM/2018 (A.Y: 2011 - 12) SHRI TAPENDRA SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM