Shri. Narayanareddy Krishnareddy, Bangalore V. Income-Tax Officer, Ward-7(2)(3), Bangalore

ITA 675/BANG/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5875 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 30-10-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 11-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUKRUTH N. SEGU
• Keywords: Opportunity of being heard; Period of limitation; Time period of passing order; Condonation of delay
• Section: 44AD; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC - C” BENCH : BANGALORE BEFORE SHRI GEORGE GEORGE K, VICE PRESIDENT ITA No.675/Bang/2023 Assessment Year : 2018-19 Shri. Narayanareddy Krishnareddy, 104/4, 3 rd Cross, 2 nd Main, Chikkalakshamaiah Layout, Hosur Road, Bengaluru – 560 029. PAN : ACHPK 6695 G Vs.ITO, Ward –7(2)(3), Bengaluru. APPELLANTRESPONDENT Assessee by:Shri.Sukruth N. Segu, CA Revenue by :Shri.Ganesh R Ghale, Advocate, Standing Counsel for Revenue. Date of hearing:31.10.2023 Date of Pronouncement:31.10.2023 O R D E R This appeal at the instance of the assessee is directed against CIT(A)’s order dated 27.03.2023, passed under section 250 of the Income Tax Act, 1961 (hereinafter called ‘the Act’). The relevant Assessment Year is 2018-19. 2. There is a delay of 109 days in filing this appeal. Assessee has filed a petition for condonation of delay and also an affidavit stating therein the reasons for belated filing of this appeal before the Tribunal. 3. I have perused the reasons stated in the affidavit for late filing of this appeal. I am of the view that assesse was prevented from sufficient cause for not filing the appeal within the prescribed time limit. The delay in filing this appeal is neither deliberate nor intentional and for the reasons beyond the control of the assessee. Therefore, I condone the delay of 109 days and proceed to dispose off the appeal ITA No.675/Bang/2023 Page 2 of 5 on merits. In holding so, I rely on the judgment of the Hon’ble jurisdictional High Court in the case of Union of India Vs. Suresh N. Shetty (1986) 26 Taxman 398 (Karnataka). 4. Brief facts of the case are as follows: Assessee, an individual, is a civil contractor. For the Assessment Year 2018- 19, return of income was filed on 16.01.2019 declaring total income of Rs.18,11,430/- including income from business under section 44AD of the Act of Rs.5,95,600/- and long term capital gains on sale of residential property of Rs.11,61,195/-. Assessee had sold a property in Bangalore during the previous year relevant to Assessment Year concerned. In computing the long-term gains, assessee claimed expenses of Rs.7,65,000/- for construction of compound wall, temporary sheds and other structures. Assessment was completed under section 143(3) r.w.s. 144B of the Act vide order dated 19.04.2021. In the said Assessment Order, AO made an addition of Rs.7,65,000/- to the long-term capital gains returned by disallowing deduction of cost of improvement. 5. Aggrieved, assessee filed appeal before the First Appellate Authority. The CIT(A) dismissed the appeal in limine by holding that there was a delay in filing the appeal for which condonation petition was not filed. 6. Aggrieved by the order of the CIT(A), assessee has filed the appeal before the Tribunal. 7. The learned Counsel for the assessee, though had given an adjournment application, had withdrawn the same during the course of hearing. The learned Counsel for the assessee submitted that the order of the CIT(A) is erroneous since there was no delay in filing the appeal before him on account of the order of the ITA No.675/Bang/2023 Page 3 of 5 Hon’ble Apex Court in Cognizance for Extension of Limitation, reported in (2022) 134 taxmann.com 307 (SC). 8. The learned Standing Counsel was duly heard. 9. I have heard the rival submissions and perused the material on record. The CIT(A) had dismissed the appeal of the assessee in limine without adjudicating the issues on merits. The CIT(A) held that there is a delay in filing the appeal before him and since no condonation petition has been filed, the appeal of the assessee is dismissed in limine. 10. The Assessment Order has been passed on 19.04.2021 in the midst of second wave of Covid-19 pandemic. Considering the disruption of the outbreak of the pandemic, the Hon’ble Supreme Court took suo moto cognizance for extention of limitation for filing appeals, etc., by the order cited supra. It was directed that in computing the limitation for instituting any appeal belatedly the period from 15.03.2020 till 20.08.2022 shall be excluded and all the persons shall have limitation period of 90 days from 01.03.2022. The relevant observations of the Hon’ble Apex Court reads as follows: "5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions : I. The order dated 23-3-2020 is restored and in continuation of the subsequent orders dated 8-3-2021, 27-4-2021 and 23-9-2021, it is directed that the period from 15-32020 till 28-2-2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. ITA No.675/Bang/2023 Page 4 of 5 II. Consequently, the balance period of limitation remaining as on 3-10- 2021, if any, shall become available with effect from 1-3-2022. III. In cases where the limitation would have expired during the period between 15-3-2020 till 28-2-2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 1-3-2022. In the event the actual balance period of limitation remaining, with effect from 1-3-2022 is greater than 90 days, that longer period shall apply." (Emphasis supplied) 11. The appeal has been filed before the CIT(A) well within the time prescribed by the Hon’ble Apex Court in the case cited supra. Therefore, there is no delay in filing the appeal and dismissal of the same in limine by the CIT(A) is not justified in view of the Hon’ble Apex Court’s order. Since the CIT(A) has not adjudicated the issue on merits, I restore the matter to the file of the CIT(A). The CIT(A) shall afford reasonable opportunity of being heard to the assessee before a decision is taken in the matter. It is ordered accordingly. 12. In the result, appeal filed by the assessee is allowed for statistical purposes. Pronounced in the open court on the date mentioned on the caption page. Sd/- Sd/- (LAXMI PRASAD SAHU) (GEORGE GEORGE K) Accountant Member Vice President Bangalore. Dated: 31.10.2023. /NS/* ITA No.675/Bang/2023 Page 5 of 5 Copy to: 1.Appellants2.Respondent 3.DRP4.CIT 5.CIT(A)6.DR, ITAT, Bangalore. 7. Guard file By order Assistant Registrar, ITAT, Bangalore.