Shri Amirali Abbasali Malaviya, Botad V. The Income Tax Officer, Ward-2(5), Bhavnagar

ITA 769/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5534 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 28-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Condonation of delay
• Section: 143(3); 142(1); 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO. 769/AHD/2017 (ASSESSMENT YEAR : 2013-14) SHRI AMIRALI ABBASALI MALAVIYA, PARA, PANJRA POLE ROAD, BOTAD 364 710. VS. INCOME TAX OFFICER, WARD-2(5), BHAVNAGAR. [PAN NO. ACUPM 6881 B] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : --NONE-- RESPONDENT BY : SHRI MUDIT NAGPAL, SR.D.R. DATE OF HEARING 04.12.2018 DATE OF PRONOUNCEMENT 30.01.2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS AGAINS T THE ORDER DATED 30.01.2017 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 6, AHMEDABAD ARISING OUT OF THE ORDER DATED 18.01.2016 FOR THE ASSESSMENT YEAR 2013 -14 PASSED BY THE ITO, WARD - 2(5), BHAVNAGAR UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED A S TO THE ACT) WITH THE FOLLOWING GROUNDS: 1. THE LEARNED ITO ERRED IN LAW AND ON FACTS I N PASSING THE ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 WHICH IS REQUESTED TO BE QUASHED. 2 THE LEARNED ITO ERRED IN LAW AND ON FACTS I N PASSING THE ORDER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 BY ASSES SING THE LONG TERM CAPITAL GAIN OF RS.82,262/- UNDER THE HEAD INCOME F ROM OTHER SOURCES, WHICH IS REQUESTED TO BE QUASHED. - 2 - ITA NO.769/AHD/2017 SHRI AMIRALI ABBASALI MALAVIYA VS. ITO ASST.YEAR 2013-14 PRAYER: - (I) CONSIDER THE INCOME OF RS. 82262/- BEING GAIN FROM SALE OF SHOP UNDER THE HEAD OF 'LONG TERM CAPITAL GAIN' AND NOT UNDER THE HEAD INCOME FROM OTHER SOURCES. (II) TO SET ASIDE THE ASSESSMENT ORDER PASSED U/S 143(3) OF IT ACT, 1961 BY THE ITO. YOUR HONOUR, APPELLANT PRAYS FOR LEAVE TO ADD TO AL TER AND/OR TO AMEND ALL OR ANY OF THE GROUNDS BEFORE THE FINAL HEARING OF THE APPE AL. 2. THE BRIEF FACTS LEADING TO THIS CASE IS THIS THA T THE ASSESSEE ENGAGED IN THE BUSINESS OF TRADING & RETAILING FILED ITS RETURN OF INCOME F OR A.Y. 2013-14 THROUGH ELECTRONIC MEDIA ON 11.03.2014 WHICH WAS PROCESSED U/S 143(1) OF THE ACT. SUBSEQUENTLY, SCRUTINY NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 11.09.20 14 AND A NOTICE 139D(C) OF THE ACT FOR FURNISHING OF HARD COPY OF THE RETURN OF INCOME AND FINANCIAL ACCOUNTS FOR A.Y. 2013- 14 ALONG WITH A NOTICE U/S 142(1) R.W.S. 129 OF THE ACT ON 01.07.2015 WAS ALSO SERVED UPON THE ASSESSEE. IT APPEARS FROM THE RECORDS THAT THE DISPUTE RELATES TO LONG TERM CAPITAL GAIN (LTCG) ON SALE OF SHOP NO.18 AT VIHAL COMPLEX, BOTAD. THE SAID PLOT WAS IN THE NAME OF THE FATHER OF THE ASSESSEE WHICH WAS PURCHASED ON 23.08.2008 AT A CONSIDERATION OF RS. 1,41,500/- BY A REGISTERED DEE D BEARING NO. 3276/2/10 OF 2008 REGISTERED WITH THE OFFICE OF SUB REGISTRAR, BOTAD IN THE NAME OF THE FATHER OF THE ASSESSEE BEING SHRI ABBASALI BARKATALI MALAVIYA. SUBSEQUENTL Y, THE SAID SHOP WAS SOLD BY A REGISTERED DEED BEARING NO. 4557/41/10 OF 2012 DATE D 19.11.2012, REGISTERED WITH THE OFFICE OF THE SUB REGISTRAR BOTAD IN THE NAME OF TH E FATHER OF THE ASSESSEE. THE ASSESSEE AS APPEARS FROM THE RETURN OF INCOME HAS OFFERED RS . 82,262/- FOR TAXATION UNDER THE HEAD LTCG ON SALE OF THE SAID SHOP WHICH ADMITTEDLY WAS RECORDED IN THE NAME OF HIS FATHER. NOTICE WAS SERVED UPON THE ASSESSEE BY THE ASSESSIN G OFFICER AS TO WHY LTCG SHOULD NOT BE TREATED TAXABLE IN THE HANDS OF HIS FATHER A ND WHY SUCH LTCG HAS BEEN OFFERED IN THE NAME OF THE ASSESSEE. IN REPLYING WHEREOF, THE ASSESSEE CONTENDED THAT THE AMOUNT OF RS. 1,50,515/- FOR PURCHASE OF THE SAID SHOP WAS AD VANCED AS LOAN BY THE ASSESSEE TO HIS FATHER WHO WITH THAT BORROWED FUND HAS PURCHASED TH E SHOP IN QUESTION. THE ENTIRE THING - 3 - ITA NO.769/AHD/2017 SHRI AMIRALI ABBASALI MALAVIYA VS. ITO ASST.YEAR 2013-14 WAS DONE ACCORDING TO THE ASSESSEE ON THE BASIS OF THE MUTUAL UNDERSTANDING BETWEEN THE SON AND THE FATHER. ACCORDINGLY, THE CAPITAL INVEST ED BY THE ASSESSEE AND THE PROFIT AND GAIN ARISING OUT OF THE SALE OF SUCH SHOP HAS RIGHT LY BEEN CLAIMED BY THE ASSESSEE ON THE BASIS OF THIS PARTICULAR PREMISE THAT THE PERSON WH O MADE THE INVESTMENT ELIGIBLE TO GET THE PROFIT. HOWEVER, THE CONTENTION MADE BY THE ASS ESSEE WAS NOT FOUND ACCEPTABLE BY THE LEARNED AO. HE, THEREFORE, ULTIMATELY FOUND SUCH CL AIM AS RETURN ON ACCOUNT OF LTCG OF RS.82,262/- AND TREATED THE SAME AS UNEXPLAINED INC OME RECEIVED BY THE ASSESSEE FROM UNDISCLOSED SOURCES. HENCE, THE SAME WAS ASSESSED U NDER THE HEAD INCOME FROM OTHER SOURCES AND ADDED TO THE TOTAL INCOME OF THE ASSESS EE. INTEREST U/S 234A, 234B, 234C WAS ALSO CHARGED. THE APPEAL ARISING OUT OF THE SAID OR DER PREFERRED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) WAS REJECTED SINCE THE SAME WAS FILE D LATE UPON REJECTION OF THE APPLICATION FOR CONDONATION OF DELAY PREFERRED BY T HE ASSESSEE IN PREFERRING SUCH APPEAL. HENCE, THE APPEAL BEFORE US. 3. AT THE TIME OF HEARING OF THE APPEAL, THE LEARNE D COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE COUL D NOT FILE THE APPEAL IN TIME FOR THE REASON BEYOND HIS CONTROL. THE APPLICATION FOR COND ONATION OF DELAY AS MADE BY THE ASSESSEE EXPLAINING THE REASONS FOR SUCH DELAY THOU GH PLACED BEFORE THE FIRST APPELLANT AUTHORITY THE SAME WAS REJECTED IN LIMINE. HE THUS PRAYED BEFORE US FOR REMITTING THE ISSUE TO THE FILE OF THE LEARNED CIT(A) UPON CONDON ING THE DELAY OF 16 DAYS IN PREFERRING SUCH APPEAL BEFORE THE LEARNED CIT(A) SO REJECTED B Y HIM. ON THE CONTRARY THE LEARNED DR RELIED UPON THE ORDER PASSED BY THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE RESPECTIVE PARTIES, PERUSED TH E RELEVANT MATERIALS AVAILABLE ON RECORD. THE APPLICATION FOR CONDONATION OF DELAY OF 16 DAYS FILED BY THE ASSESSEE ON 11.03.2016 AND AN AFFIDAVIT AFFIRMED BY THE ASSESSE E READS AS FOLLOWS: I, AMIRALI ABBASALI MALVIYA, AGED ADULT RESIDING A T BOTAD DO HEREBY SOLEMNLY AFFIRM AND DECLARE ON OATH AS UNDER: - 4 - ITA NO.769/AHD/2017 SHRI AMIRALI ABBASALI MALAVIYA VS. ITO ASST.YEAR 2013-14 ASSESSMENT ORDER U/S 143(3) YARNED ITO HAS ERRED IN PASSING THE ORDER U/S 143(3) OF THE IT ACT, 1961 ASSESSING INCOME OF RS.82262/- UNDER THE HEAD INCOME FROM OTHER SOURCES. IT IS SUBMITTED THAT ON THE FACTS A ND CIRCUMSTANCES OF THE CASE CONSIDERATION OF INCOME UNDER INCOME FROM OTHER SO URCES HEAD WHICH IS /ABSOLUTELY INCORRECT, ILLEGAL AND THE PENALTY BE D ELETED. DUE TO DEATH OF ASSESSEE 02. I HAD A DISPUTE WITH MY TAX CONSULTANT IN RESPE CT OF FEES, QUALITY OF SERVICES ETC. SUCH DISPUTE COULD NOT BE SOLVED INSPITE OF OU R SEVERAL MEETINGS. I REQUESTED HIM TO GIVE BACK MY FILE SO THAT I CAN FILE APPEAL AT CIT(A), AHMEDABAD FROM ANOTHER CONSULTANT BUT THEY FAILED TO GIVE ME THE F ILE. SINCE, THE NECESSARY DOCUMENTS ETC. WERE IN POSSESSION WITH PREVIOUS TAX CONSULTANT, I WAS UNABLE TO FILE THE APPEAL BEFORE CIT(A), AHMEDABAD. I WAS GIVEN THE COPY OF ITOS ASSESSMENT ORDER U/S 143(3) OF INCOME TAX ACT, 1961 ON 31.01.2016. IMMEDIATELY ON THE SAME DAY, I RUSHE D TO THE OFFICE OF OTHER CA TO WHOM I SHOWN THE ORDER AND ASSIGNED THE WORK OF CIT APPEAL. THEREAFTER, ON 05.02.2016, THE DISPUTE WITH PREVIOUS TAX CONSULTAN T WAS OVER AND HE GAVE ME THE FILE CONTAINING THE OTHER DOCUMENTS INCLUDING THE O RDERS. DUE TO THE DISPUTE WITH PREVIOUS TAX CONSULTANT AND NOT GIVING ME THE DOCUMENTS BY HIM TO ME, I CANNOT FILED THE APPEAL BEFORE CIT, AHMEDABAD WITHIN 30 DAYS OF RECEIPT OF THE ORDER OF ITO, WARD 2(5), BHAVNAGAR B Y MY AUTHORIZED REPRESENTATIVE. PRAYER, I AM BEING A LAYMAN, NOT HAVING THE ADEQUATE KNOWLE DGE OF INCOME TAX LAWS AND I UNDERSTAND VERY LITTLE OF INCOME TAX LAWS. I AM E XTREMELY SORRY FOR THE INORDINATE DELAY IN FILING APPEAL BEFORE CIT(A), AH MEDABAD. I HUMBLY SUBMIT THAT THERE IS A BONA FIDE AND GENUINE REASON FOR SUCH DE LAY WHICH IS PURELY TECHNICAL AND VENIAL. I PRAY THE HONBLE CIT(A), AHMEDABAD TO BE KIND ENOUGH TO CONDONE THE DELAY IN FILING OF APPEAL. I REGRET MY UTTER IG NORANCE ABOUT INCOME TAX LAWS AND ITS PROVISIONS OF APPEALS. WE HAVE GONE THROUGH THE SAME AND FIND SUFFICIENT M ERIT IN PREFERRING THE APPEAL WITH THE DELAY OF 16 DAYS BY THE ASSESSEE WHICH NEE DS TO BE CONDONED. IN FACT, WE HAD OBSERVED THAT SUCH APPLICATION OUGHT TO HAVE BEEN D EALT WITH IN ITS PROPER PROSPECTIVE BY THE LEARNED CIT(A) IN ORDER TO RENDERE PROPER JUSTI CE TO THE ASSESSEE. HENCE, WE CONDONING SUCH DELAY SET ASIDE THE ISSUE TO THE FIL E OF THE LEARNED CIT(A) TO DISPOSE OF THE SAME AFRESH TAKING INTO CONSIDERATION THE ENTIR E ASPECT OF THE MATTER ON MERIT AND THE EVIDENCES SO PLACED BY THE ASSESSEE BEFORE HIM. WE FURTHER DIRECT THE LEARNED CIT(A) TO - 5 - ITA NO.769/AHD/2017 SHRI AMIRALI ABBASALI MALAVIYA VS. ITO ASST.YEAR 2013-14 CONSIDER ANY OTHER EVIDENCE WHICH THE ASSESSEE MAY CHOOSE TO FILE AT THE TIME OF THE HEARING OF THE APPEAL BEFORE HIM FOR PROPER ADJUDIC ATION OF THE MATTER. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 30/01/2019 SD/- SD/- ( WASEEM AHMED ) ( MS. MADHUMITA ROY ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 30/01/2019 PRITI YADAV, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. () / THE CIT(A)-6, AHMEDABAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD. 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 24/01/2019 (DICTATION PAGES 7) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29/01/2019 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 30/01/2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER