Anita Nand Chahal, Dehradun V. ITO, Ward-1(1), Dehradun

ITA 70/DDN/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1353 (ITAT-DEHRADUN)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 04-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 148; 144

Judgement Text

1 INCOME TAX APPELLATE TRIBUNAL [DEHRADUN BENCH] BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO 70 / DDN/2019 A Y 2011 - 12 APPELLANT RESPONDENT ANITA NAND CHAHAL 43, LANE NO 3, PHASE II, UPASANA ENCLAVE PANDITWARI DEHRADUN PAN : - AEWPN3167P VS. THE INCOME TAX OFFICER WARD - 1 (1) DEHRADUN ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: - 28/02/2020 DATE OF ORDER: - 1 3 / 0 5 / 2 0 2 0 O R D E R PER PRASHANT MAHARISHI, A.M.: 01 THIS APPEAL IS FILED BY THE ASSESSEE, AN INDIVIDUAL FOR ASSESSMENT YEAR 2011 - 12 AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , DEHRADUN DATED 30/4/2019 . ASSESSEE PREFERRED APPEAL BEFORE HIM AGAINST THE ORDER OF THE INCOME TAX OFFICER W ARD - 1 (1) , DEHRADUN PASSED U/S 143 (3) RWS 147 OF THE ACT ON 17/11/2016 . 2 02 BRIEFLY STATED THE FACTS FACT SHOWS THAT ASSESSEE ALONG WITH NINE OTHER SOLD THE LAND AND HER SHARE OF CAPITAL GAIN AMOUNTING TO 1 597462. SHE DID NOT FILE ANY RETURN OF IN COME AND THEREFORE NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT WAS ISSUED ON 21/9/2015 WHICH WAS RETURNED BY THE POSTAL AUTHORITIES STATING THAT ASSESSEE HAS LEFT. THEREFORE ANOTHER NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 13/10/2015 AT THE NEW ADDRESS AND DULY SERVED BY SPEED POST. AO FURTHER WROTE TWO LETTERS WHICH WERE RECEIVED BACK WITH THE REMARKS THAT ASSESSEE IS OUT OF STATION AND PREMISES LOCKED RESPECTIVELY. SUBSEQUENTLY NOTICES UNDER SECTION 142 (ONE) OF THE ACT WERE ALSO ISSUED WHICH WERE ALSO RECEIVED BACK. THEREFORE IN THE MONTH OF SEPTEMBER 2016 THE NOTICE WAS SERVED BY A FIXTURE. SUBSEQUENTLY NOTICE UNDER SECTION 144 OF THE INCOME TAX ACT WAS ISSUED ON 7/10/2016 WHICH WAS SERVED ON THE ASSESSEE ON 8/10/2015. IN RESPONSE TO THIS ASS ESSEE DID NOT SUBMIT ANY RESPONSE. 03 THE AO NOTED THAT LAND AT MEASURING 1078 0 M WAS SOLD TO ONE MR A HELD GUPTA BY ASSESSEE AND OTHER PARTIES FOR 3 833907 TO ON 17/FILE/2010. ACCORDING TO THE SALE DEED AO FOUND THAT ONE OF THE PERSON WHO WAS IN POSSESSI ON OF THE LAND WAS PAID RUPEES TO .10 CRORE FOR RELINQUISHING THE POSSESSION. AS ASSESSEE DID NOT COMPLY WITH ANY OF THE NOTICES THE ASSESSMENT ORDER WAS PASSED DETERMINING THE LONG - TERM CAPITAL GAIN ON SALE OF THAT PROPERTY BY DETERMINING ONE FOURTH SHARE OF THE 1/6 TH SHARE OF THE PROPERTY. 3 CONSEQUENT CAPITAL GAIN OF 1 597462/ - WAS DETERMINED AND THE ORDER WAS PASSED ON 17/11/2016. 04 THE ASSESSEE AGGRIEVED WITH THE ORDER OF THE LEARNED ASSESSING OFFICER PREFERRED AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX APPEALS DEHRADUN. AS THE ASSESSEE HAS FILED FORM NUMBER 35 MANUALLY ON 29/4/2017, THE LEARNED CIT A NOTED THAT THE ASSESSEE SHOULD HAVE FILED APPEAL ELECTRONICALLY.. ASSESSEE IN FACT FILED FORM NUMBER 35 ELECTRONICALLY EXPLAINING THE REASON FOR DELA Y IN FILING OF THE APPEAL. HOWEVER AS THE ASSESSEE HAS NOT FILED THE ELECTRONICALLY APPEAL IN TIME THE LEARNED CIT A HELD THAT AUTHORISED REPRESENTATIVE DID NOT HAVE ANY FORCE IN THE CONTENTION ABOUT EXPLAINING THE DELAY IN FILING OF THE APPEAL AND THERE FORE ON TECHNICAL GROUND OF THE DELAY THE APPEAL OF THE ASSESSEE WAS DISMISSED. SUCH ORDER WAS PASSED BY HIM ON 30/4/2019. THE ASSESSEE AGGRIEVED WITH THAT ORDER HAS PREFERRED THIS APPEAL BEFORE US. 05 DESPITE NOTICE TO THE ASSESSEE NONE APPEARED ON BEHALF OF THE ASSESSEE AND THEREFORE THE ISSUE IS DECIDED ON THE MERITS OF THE CASE. 06 THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 07 WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND FIND THAT ASSESSEE FILED APPEAL BY FILI NG FORM NUMBER 35 PREPARED MANUALLY ON 29/4/2017. THE ASSESSEE EXPLAINED THE REASON OF DELAY BEFORE HIM THAT ASSESSEE IS AN ILLITERATE D WHO GAVE THE ASSESSMENT ORDER RECEIVED TO HER BROTHER - IN - LAW TO TAKE 4 FURTHER ACTION. IT WAS FOUND ON 20/05 /2017 THAT T HE APPEAL WAS NOT PREFERRED AND THEREFORE SHE PREPARED THE APPEAL AND FILED ALONG WITH THE APPEAL FEE PAID ON 21/FILE/2017 HOWEVER SAME COULD NOT BE SUBMITTED ONLINE TILL 6/6/2017. THE ASSESSEE EXPLAINED THAT ABOVE MISTAKE IS BECAUSE OF THE IGNORANCE ON TH E PART OF THE BROTHER - IN - LAW OF THE ASSESSEE AND MERELY A TECHNICAL ERROR. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT FIND ANY REASON TO UPHOLD THE ORDER OF THE LEARNED CIT A AS ASSESSEE WOULD NOT HAVE GAINED ANYTHING BY NOT FILING AN APPEAL IN ACCORDANCE WITH THE PROVISIONS OF THE INCOME TAX RULES 1962. SUBSEQUENTLY THE ASSESSEE HAS ALSO EXPLAINED THE REASON FOR TECHNICAL VIOLATION IN NOT FILING THE APPEAL IN PROPER FORM AND MENTIONING OF THE WRONG DATE. WE FIND CONSIDERABLE FORCE IN T HE REASONS GIVEN BY THE ASSESSEE BEFORE THE LEARNED CIT A AND INSTEAD OF DECIDING THE APPEAL IS NOT MAINTAINABLE, ACCORDING TO US THE LEARNED CIT APPEAL SHOULD HAVE DECIDED THE ISSUE ON MERITS OF THE CASE. IN VIEW OF THE ABOVE FACTS WERE SET ASIDE THE WH OLE APPEAL BACK TO THE FILE OF THE LEARNED ASSESSING OFFICER WITH A DIRECTION TO THE ASSESSEE TO COMPLY WITH THE PROVISIONS OF THE LAW AND SUBMIT PROPER DOCUMENTATION BEFORE THE LEARNED CIT A. THE LEARNED CIT A ALSO DIRECTED TO HEAR THE APPEAL OF THE A SSESSEE ON THE MERITS OF THE CASE AND THEN DECIDE IT IN ACCORDANCE WITH THE LAW. 5 08 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON 1 3 / 0 5 / 2 0 2 0 - S D / - - S D / - (SUDHANSHU SRIVASTAVA) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 / 0 5 / 2 0 2 0 COPY FORWARDED TO 1 . APPELLANTS; 2 . RESPONDENTS; 3 . CIT; 4 . CIT (APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT,