THOTLA SWAMI, MOTHKUR V. INCOME TAX OFFICER, WARD-1, SURYAPET

ITA 459/Hyd/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 8726 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 14-02-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 22-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148; 144

Judgement Text

ITA 459 of 2023 Thotla Swami Page 1 of 7 आयकर अपीलȣय अͬधकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ B ‘ Bench, Hyderabad Before Hon'ble Justice (Retd.) C.V. Bhadang, President AND Shri R.K. Panda, Vice-President आ.अपी.सं /ITA No.459/Hyd/2023 (िनधाŊरण वषŊ/Assessment Year: 2016-17) Shri Thotla Swami Mothikur PAN:FHEPS1516R Vs. Income Tax Officer Ward-1, Suryapet Nalgonda (Appellant) (Respondent) िनधाŊįरती Ȫारा/Assessee by: Shri K.A. Sai Prasad, CA राज̾ व Ȫारा/Revenue by: : Shri R. Kumaran, DR सुनवाई की तारीख/Date of hearing: 15/02/2024 घोषणा की तारीख/Pronouncement: 15/02/2024 ORDER Per R.K. Panda, Vice-President. This appeal filed by the assessee is directed against the order dated 28.09.2022 of the learned CIT (A)-NFAC, Delhi, relating to A.Y.2016-17. 2. There is a delay of 300 days in filing of this appeal by the assessee for which the assessee has filed a condonation petition along with an affidavit explaining the reasons for such delay. The learned Counsel for the assessee referring to the same submitted that the learned CIT (A) NFAC has passed the order on 28.09.2022 but the Advocate who was engaged to appear before the learned CIT (A) NFAC, did not inform the ITA 459 of 2023 Thotla Swami Page 2 of 7 assessee regarding the outcome of the appeal. He submitted that only when the Department started proceedings for collection of taxes that the assessee came to know that in Form No.35 filed before the learned CIT (A) NFAC, the mail id of the Advocate was given and that he did not respond to the notices issued by the learned CIT (A) NFAC. He had also not informed the assessee regarding the order passed by the learned CIT (A) NFAC. He submitted that after the recovery proceedings initiated by the Department, the assessee approached another Tax Consultant and got the appeal filed before the Tribunal on 23.9.2023 causing a delay of 300 days. Referring to various decisions, he submitted that since the delay in filing of this appeal is not deliberate, the delay should be condoned. 3. The learned DR, on the other hand, opposed the arguments advanced by the assessee and submitted that the reasons for such delay is not properly explained by the assessee and therefore, the reasons given by assessee regarding the delay should be dismissed. 4. We have heard the rival arguments made by both sides. It has been held by the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. MST Katiji & others reported in 1987 AIR 1353 that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It has further been held that ITA 459 of 2023 Thotla Swami Page 3 of 7 refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned, the highest that can happen is that a cause would be decided on merit after hearing the parties. Respectfully following the above decision, we condone the delay in filing of this appeal and the appeal is admitted for adjudication. 5. Although a number of grounds have been raised by the assessee, however, these all relate to the order of the learned CIT(A)NFAC in confirming the addition of Rs.96,80,000/- made by the Assessing Officer under the head “income from other sources”. 6. Facts of the case, in brief, are that the assessee is an individual and filed his return of income on 17.03.2018 declaring total income of Rs.2,78,460/-. On the basis of information obtained from the DIT (Intelligence) the case of the assessee was reopened by recording reasons. Accordingly, notice u/s 148 of the I.T. Act was issued to the assessee on 8.10.2018. However, the assessee neither filed any return of income in response to the notice u/s 148 nor filed any reply to the show-cause notices issued by the Assessing Officer for which the Assessing Officer completed the assessment u/s 144 of the I.T. Act. 7. During the course of assessement proceedings, the Assessing Officer noted that the assessee has purchased ITA 459 of 2023 Thotla Swami Page 4 of 7 agricultural land of 4acres and16 guntas in Survey No.249 part situated at Pedda Amberpet Village, Hayathnagar for a consideration of Rs.96,80,000/- vide document No.4441/2015 dated 13.08.2015 wherein at page No.6 in first para it was clearly mentioned that an amount of Rs.96,80,000/- was paid in cash to the vendor Sri Desaram Krishna and other family members. Since the assessee did not furnish any satisfactory explanation regarding the source before the Assessing Officer despite number of opportunities granted, the Assessing Officer made addition of the same and determined the total income of the assessee at Rs.99,62,030/- as against the returned income of Rs.2,82,030/-. Since the assessee did not appear before the learned CIT (A) NFAC despite number of opportunities granted, the learned CIT (A) NFAC in the ex-parte order sustained the addition made by the Assessing Officer. 8. Aggrieved with such order of the learned CIT (A) the assessee is in appeal before the Tribunal. 9. The learned Counsel for the assessee submitted that the seller had sold the property in question to many other persons even before executing the sale deed in favour of the assessee and the title of the assessee is still in dispute. Hence the assessee’s claim of non-payment of consideration cannot be brushed aside. He submitted that in the interest of justice, the assessee should be given one opportunity to substantiate his case by producing the requisite details before any of the lower authorities. ITA 459 of 2023 Thotla Swami Page 5 of 7 10. The learned DR, on the other hand, strongly objected to the arguments advanced by the learned Counsel for the assessee. Referring to the assessment order as well as the order of the learned CIT (A) NFAC, he submitted that despite number of opportunities granted, the assessee never bothered to file the return of income or furnish the requisite details substantiating the nature and source of the cash payment for the sale of the impugned property. He accordingly submitted that the order of the learned CIT (A) NFAC should be upheld and the grounds raised by the assessee should be dismissed. 11. We have heard the rival arguments made by both the sides, perused the orders of the AO and the learned CIT (A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us by both sides. We find the AO in the instant case made addition of Rs.96,80,000/- to the total income of the assessee on the ground that the assessee has purchased agricultural land of 4acres and16 guntas in Survey No.249 part situated at Pedda Amberpet Village, Hayathnagar for a consideration of Rs.96,80,000/- vide document No.4441/2015 dated 13.08.2015 by paying cash. However, the assessee in response to the statutory notices did not appear before him to explain the source of such investment. We find due to non-appearance of the assessee before the learned CIT (A) NFAC despite number of opportunities granted, the learned CIT (A) NFAC sustained the addition made by the Assessing Officer. It is the submission of the learned Counsel for the assessee that the seller had sold the property in question, to many other persons even before ITA 459 of 2023 Thotla Swami Page 6 of 7 executing the sale deed in favour of the assessee and the title of the assessee is still in dispute. It is also his submission that given an opportunity, the assessee is in a position to substantiate his case by producing the details before the Assessing Officer. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the Assessing Officer with a direction to grant one last opportunity to the assessee to substantiate his case and decide the issue as per fact and law. The assessee is also hereby directed to participate in the assessement proceedings before the Assessing Officer without seeking any adjournment under any pretext failing which the Assessing Officer is at liberty to pass appropriate order as per law. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes. 12. In the result, appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the Open Court at the time of hearing itself i.e. on 15 th February, 2024. Sd/- Sd/- (Justice (Retd.) C.V. BHADANG PRESIDENT (R.K. PANDA) VICE-PRESIDENT Hyderabad, dated 15 th February, 2024 Vinodan/sps ITA 459 of 2023 Thotla Swami Page 7 of 7 Copy to: S.No Addresses 1 Shri Thotla Swami C/o Katrapati & Associates, 1-1- 298/2/B/3 Sowbhagya Avenue Apts, 1st Floor, Ashoknagar, Street No.1 Secunderabad 500020 2 Income Tax Officer Ward-1, Krishnanagar, Suryapet 508213 3 Pr. CIT-, Hyderabad 4 DR, ITAT Hyderabad Benches 5 Guard File By Order