Sri. B.K. Prakash Kumar, Bangalore V. ITO, Bangalore

ITA 691/BANG/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5380 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 11 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-11-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 20-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G KAMALADHAR
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE S HRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER I.T . A. NO. 691 /BANG/20 14 (ASSESSMENT YEAR : 20 06 - 07 ) SRI B.K.PRAKASH KUMAR, PROP. TIME SHOP, NO.4, COMME RCIAL STREET, BANGALORE. . APPELLANT. PAN AALPP 7953L VS. INCOME TAX OFFICER, WARD 1(2), BANGALORE. .. RESPONDENT. APPELLANT BY : SMT. SHEETAL BORKAR, ADVOCATE. R E SPONDENT BY : SHRI G. KAMALADHAR, STANDING COUNSEL. DATE OF H EARING : 10.04.2017. DATE OF P RONOUNCEMENT : 19 .05 .201 7 . O R D E R PER SHRI VIJAY P AL RAO, J .M . : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DT.20.10.2010 OF COMMISSIONER OF INCOME TAX (APPEALS) FOR THE ASSESSMENT YEAR 2006 - 07. 2 IT A NO. 691 /BANG/201 4 2. THERE IS A DELAY OF 1,274 DAYS IN FI LING THE PRESENT APPEAL. THE ASSESSEE HAS FILED AN APPLICATION FOR CONDONATION OF DELAY WHICH HAS BEEN SUPPORTED BY THE AFFIDAVIT OF THE ASSESSEE AS WELL AS AFFIDAVIT OF ONE MR. M.G. VINAYA SIMHA, CA, REPRESENTATIVE OF THE ASSESSEE. 3. WE HAVE HEARD THE LEARNED AUTHORISED REPRESENTATIVE AS WELL AS LEARNED DEPARTMENTAL REPRESENTATIVE AND PERUSED THE REASONS EXPLAINED IN THE AFFIDAVIT FOR DELAY IN FILING THE APPEAL. IT HAS BEEN STATED IN THE AFFIDAVIT THAT THE ASSESSEE IS A SENIOR CITIZEN OF 73 YEARS O LD AND COMPLETELY DEPENDING ON ITS CA IN RESPECT OF THE TAX MATTERS. IT WAS FURTHER STATED THAT THE ASSESSEE WAS NOT AWARE ABOUT THE IMPUGNED ORDER PASSED BY THE CIT (APPEALS) EXPARTE AS THIS ORDER WAS RECEIVED BY THE CA OF THE ASSESSEE WHO WAS AUTHORI ZED AND SUPPOSED TO REPRESENT BEFORE THE CIT (APPEALS). THUS THE ASSESSEE HAS EXPLAINED THAT THE REPRESENTATIVE WHO HAS FALSELY INFORMED THE ASSESSEE WITH REGARD TO THE PENDENCY OF THE APPEAL BEFORE THE CIT (APPEALS) WHEREAS THE CIT (APPEALS) HA D ALREADY D ISMISSED THE APPEAL OF THE ASSESSEE FOR NON - APPEARANCE . T HEREFORE , THE ASSESSEE COULD NOT FILE THE PRESENT APPEAL IN 3 IT A NO. 691 /BANG/201 4 TIME AS THERE WAS NEGLIGENCE ON THE PART OF THE REPRESENTATIVE OF THE ASSESSEE. TH I S EXPLANATION OF THE ASSESSEE HAS BEEN ACCEPTED/ CORRO BORATED BY THE CA IN HIS AFFIDAVIT DT.2 3 .4.2014 WHEREIN IT HAS BEEN STATED ON OATH THAT DUE TO HIS ILL HEALTH HE COULD NOT ATTEND THE HEARING BEFORE CIT (APPEALS) THEREFORE , THERE IS A PROFESSIONAL NEGLIGENCE ON HIS PART IN NOT ATTENDING THE MATTER OF THE CLIENTS INCLUDING THE ASSESSEE BEFORE THE CIT (APPEALS). THE CA HAS ACCEPTED HIS NEGLIGENCE IN THE CASE OF THE ASSESSEE FOR NOT ATTENDING BEFORE THE CIT (APPEALS) AND ALSO NOT INFORMING THE ASSESSEE ABOUT THE OUTCOME OF THE APPEAL BEFORE THE CIT (APPEALS ). THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS ALSO POINTED OUT THAT IN THIS MATTER, THE ISSUE IS ONLY REGARDING THE ASSESSMENT OF CAPITAL GAINS ARISING FROM TRANSFER OF PROPERTY IN QUESTION WHICH WAS OWNED BY THE ASSESSEE, HIS MOTHER AND OT HER FAMILY MEMBERS HOWEVER , SAID CAPITAL GAIN ARISING FROM THE TRANSFER OF PROPERTY WAS ALREADY ASSESSED BY THE ASSESSING OFFICER IN THE HANDS OF THE ASSESSEE'S MOTHER. THE LEARNED AUTHORISED REPRESENTATIVE HAS FILED THE ASSESSMENT ORDER DT.29.12.2009 WHE REIN THE ASSESSING OFFICER HAS ASSESSED THE 4 IT A NO. 691 /BANG/201 4 CAPITAL GAIN ARISING FROM TRANSFER OF THE PROPERTY IN QUESTION BEARING NO.20, VENKATASWAMI NAIDU STREET, VASANT NAGAR, WARD NO.78, BANGALORE VIDE AGREEMENT DT.12.11.2005 FOR A CONSIDERATION OF RS.73,20,000. WE F IND THAT THE ASSESSING OFFICER HAS TAKEN INTO CONSIDERATION THE CHARGEABILITY OF TAX OF CAPITAL GAIN ARISING FROM THE TRANSFER OF THE PROPERTY IN QUESTION VIDE AGREE MENT DT.12.11.2005 IN THE HAND OF THE MOTHER OF THE ASSESSEE WHO HAD ALREADY DIED AND THE S AME CAPITAL GAIN WAS AGAIN ASSESSED TO TAX IN THE HAND OF THE ASSESSEE. WE NOTE THAT THE SALE CONSIDERATION AS WELL AS AGREEMENT IS SAME HOWEVER ONLY 25% OF SHARE OF THE ASSESSEE WAS ASSESSED IN THE HAND OF THE ASSESSEE BEFORE US. ONCE THE CAPITAL GAIN WAS ASSESSED BY CONSIDERING THE ENTIRE SALE CONSIDERATION IN THE HAND OF THE MOTHER THEN ASSESSING THE SHARE OF THE ASSESSEE WOULD AMOUNT TO DOUBLE TAXATION OF THE SAME INCOME. 4. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WHEN THE ASSESS EE HAS EXPLAINED SUFFICIENT CAUSE OF DELAY AS WELL AS WHEN THE ENTIRE CAPITAL GAIN ARISING FROM THE TRANSFER OF PROPERTY WAS ALREADY 5 IT A NO. 691 /BANG/201 4 ASSESSED IN THE HAND OF THE MOTHER OF THE ASSESSEE THEN THE MATTER IS REQUIRED TO BE CONSIDERED AND DECIDED ON MERIT INSTEA D OF DISMISSING ON TECHNICALITIES. WE FIND THAT THE ASSESSEE COULD NOT HAVE ACHIEVED ANY ULTERIOR PURPOSE BY FILING THE APPEAL BELATEDLY AS THE CAPITAL GAIN WAS ALREADY CHARGED TO TAX IN THE HAND OF THE MOTHER. THEREFORE IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE INCLINE TO CONDONE THE DELAY OF 1,274 DAYS. 5. AS RE G ARDS THE MERITS OF THE MATTER, WE FIND THAT THE CIT (APPEALS) HAS DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE FOR WANT OF PROSECUTION WITHOUT GOING INTO THE MERITS THEREFORE THE MATT ER IS REQUIRED TO BE DECIDED ON MERITS. T HE ASSESSEE HAS ALREADY EXPLAINED THE REASONS FOR NON - ATTENDANCE BEFORE THE CIT (APPEALS) AS DUE TO THE NEGLIGENCE ON THE PART OF CA WHO WAS REPRESENTING THE ASSESSEE. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES O F THE CASE AND IN THE INTEREST OF JUSTICE, WE SET ASIDE THE IMPUGNED ORDER OF THE CIT (APPEALS) AND REMIT THE MATTER TO THE RECORD OF THE CIT (APPEALS) FOR GRANTING ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE AND DECIDE THE SAME ON 6 IT A NO. 691 /BANG/201 4 MERITS AFTE R TAKING INTO CONSIDERATION THE ASSESSMENT FRAMED IN THE CASE OF THE ASSESSEE'S MOTHER. THE OBSERVATIONS MADE IN THIS ORDER SHALL HAVE NO BEARING ON THE DECISION ON MERITS. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOS E. ORDER PRONOUNCED IN THE OPEN COURT ON THE 19 DAY OF MAY, 201 7 . SD/ - ( INTURI RAMA RAO ) ACCOUNTANT MEMBER SD/ - ( VIJAY PAL RAO ) JUDICIAL MEMBER BANGALORE, DT. 19 .05.2017. *REDDY GP COPY TO : 1 . APPELLANT 2 . RESPONDENT 3 . C.I.T. 4 . CIT(A) 5 . DR, ITAT, BANGALORE. 6 . GUARD FILE. ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL BANGALORE.