Harish Tyagi, Ghaziabad V. DCIT Circle-1, Ghaziabad

ITA 8489/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9770 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 30-10-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DEEPAK GUPTA
• Keywords: Opportunity of being heard; Cost of acquisition; Condonation of delay; Capital Gains
• Section: 143(1); 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC-2 : DELHI [THROUGH VIDEO CONFERENCING] BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA.NO.8489/DEL./2019 ASSESSMENT YEAR 2010-2011 SHRI HARISH TYAGI, C-801, SHIPRA KRISHNA VISTA INDIRAPURAM, GHAZIABAD 201 014 UTTAR PRADESH. PAN ACSPT6092K VS. THE DCIT, CIRCLE -1, GHAZIABAD. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI DEEPAK GUPTA, C.A. FOR REVENUE : SH. VIJAY KUMAR KATARIA, SR. DR DATE OF HEARING : 27.07.2021 DATE OF PRONOUNCEMENT : 27.07.2021 ORDER PER R.K. PANDA, A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 31.08.2019 OF THE LD. CIT(A), GHAZIABAD, RELATING TO THE A.Y. 2010-2011. 2. ALTHOUGH A NUMBER OF GROUNDS HAVE BEEN RAISED BY THE ASSESSEE, HOWEVER, THESE ALL RELATE TO THE ORDER OF THE 2 ITA.NO.8489/DEL./2019 SHRI HARISH TYAGI, GHAZIABAD. LD. CIT(A) IN DISMISSING THE APPEAL FOR DELAY IN FILING OF THE APPEAL. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 30.07.2010 DECLARING TOTAL INCOME OF RS.22,65,160/- WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE I.T. ACT, 1961. SUBSEQUENTLY, THE A.O. REOPENED THE ASSESSMENT ON THE BASIS OF AIR INFORMATION THAT THE ASSESSEE SOLD IMMOVABLE PROPERTY OF RS.30 LAKHS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FILED THE REQUISITE DETAILS AS ASKED BY THE A.O. THE A.O. NOTED THAT ASSESSEE HAS SOLD THE IMMOVABLE PROPERTY FOR RS.30 LAKHS AND OFFERED FOR TAX LONG TERM CAPITAL GAINS OF RS.9,05,158/- AFTER CLAIMING INDEXED COST OF ACQUISITION OF RS.13,04,842/- AND INDEXED COST OF IMPROVEMENT OF RS.7,90,000/-. THE A.O. ACCEPTED THE INDEXED COST OF ACQUISITION IN VIEW OF PURCHASE DEED FILED BY THE ASSESSEE. HOWEVER, IN THE ABSENCE OF ANY DETAILS AND EVIDENCE REGARDING INDEXED COST OF IMPROVEMENT, THE A.O. DISALLOWED THE SAME AND MADE THE ADDITION TO THE TOTAL INCOME OF THE ASSESSEE. 3 ITA.NO.8489/DEL./2019 SHRI HARISH TYAGI, GHAZIABAD. 3.1. BEFORE THE LD. CIT(A), THE ASSESSEE FILED AN APPEAL ON 09.05.2018 WHICH IS FOUND TO BE DELAYED BY MORE THAN 03 MONTHS. THE ASSESSEE HAS EXPLAINED THE REASON FOR SUCH DELAY STATING THEREIN THAT THE A.O. HAS COMPLETED THE ASSESSMENT ON 17.11.2017, BUT, NEITHER ANY INFORMATION WAS GIVEN TO THE ASSESSEE WITH RESPECT TO ASSESSMENT NOR ANY COPY OF ORDER PROVIDED TO THE ASSESSEE. ONLY WHEN THE BANK ACCOUNT OF THE ASSESSEE WAS SEIZED AS PER THE DIRECTION OF THE A.O. DATED 19.04.2018, THE ASSESSEE CAME TO KNOW OF THE ASSESSMENT ORDER. THE ASSESSEE APPLIED FOR CERTIFIED COPY OF THE ASSESSMENT ORDER ON 03.05.2018 WHICH WAS PROVIDED TO THE ASSESSEE ON 08.05.2018. THEREAFTER, THE ASSESSEE FILED THE APPEAL. IT WAS ACCORDINGLY REQUESTED THAT THE DELAY IN FILING OF THE APPEAL SHOULD BE CONDONED. HOWEVER, THE LD. CIT(A) DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND HELD THAT THE ORDER ENCLOSED WITH THE APPEAL FORM IS NOT A CERTIFIED COPY, THEREFORE, THERE IS AN UNJUSTIFIABLE DELAY IN FILING OF THE APPEAL. ACCORDING TO THE LD. CIT(A), CONDONATION OF DELAY IS NOT A MATTER OF RIGHT SINCE THE ASSESSEE HAS FAILED TO SHOW REASONS OF DELAY ON 4 ITA.NO.8489/DEL./2019 SHRI HARISH TYAGI, GHAZIABAD. LAST DAY OF LIMITATION AND THEREAFTER FOR EACH DAY. ACCORDING TO THE LD. CIT(A), THE ASSESSEE HAS NOT ACTED WITH REASONABLE DILIGENCE IN PROSECUTING THE APPEAL. HE, ACCORDINGLY, DISMISSED THE APPEAL FILED BY THE ASSESSEE TREATING THE SAME AS NON-EST AND DEFECTIVE. 4. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE LD. CIT(A) AND A.O. AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. I HAVE ALSO GONE THROUGH THE VARIOUS DECISIONS CITED BEFORE ME. I FIND THE LD. CIT(A) IN THE INSTANT CASE DISMISSED THE APPEAL FILED BY THE ASSESSEE ON ACCOUNT OF DELAY IN FILING OF THE SAME BY MORE THAN 03 MONTHS. IT IS SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE WAS NOT AWARE OF PASSING OF ASSESSMENT ORDER AND ONLY WHEN THE BANK ACCOUNT OF THE ASSESSEE WAS SEIZED BY THE A.O, THE ASSESSEE CAME TO KNOW OF THE DEMAND AND THEREAFTER APPLIED FOR CERTIFIED COPY OF THE ASSESSMENT ORDER WHICH WAS PROVIDED 5 ITA.NO.8489/DEL./2019 SHRI HARISH TYAGI, GHAZIABAD. TO HIM. THE ASSESSEE ACCORDINGLY FILED THE APPEAL AND, THEREFORE, THE DELAY, IF ANY, SHOULD BE CONDONED AND THE APPEAL OF THE ASSESSEE SHOULD BE HEARD ON MERIT. 6. IT WAS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS., MST. KATIJI & ORS., REPORTED IN 167 ITR 471 (SC) 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. THE HONBLE SUPREME COURT WHILE CONDONING THE DELAY HAS LAID DOWN THE FOLLOWING GUIDELINES : 1. ORDINARILY A LITIGANT DOES NOT STAND TO BENEFIT BY LODGING AN APPEAL LATE. 2. REFUSING TO CONDONE 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 6 ITA.NO.8489/DEL./2019 SHRI HARISH TYAGI, GHAZIABAD. DECIDED ON MERITS AFTER HEARING THE PARTIES. 3. EVERY DAYS DELAY MUST BE EXPLAINED DOES NOT MEAN THAT A PEDANTIC APPROACH SHOULD BE MADE. WHY NOT EVERY HOUR'S DELAY, EVERY SECOND'S DELAY? THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE PRAGMATIC MANNER. 4. 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 5. THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGLIGENCE, OR ON ACCOUNT OF MALA FIDES. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT HE RUNS A SERIOUS RISK. 6. IT MUST BE GRASPED THAT JUDICIARY IS RESPECTED NOT ON ACCOUNT OF ITS POWER TO LEGALIZE INJUSTICE ON 7 ITA.NO.8489/DEL./2019 SHRI HARISH TYAGI, GHAZIABAD. TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 6.1. SINCE THE LD. CIT(A) IN THE INSTANT CASE HAS DISMISSED THE APPEAL OF ASSESSEE ON ACCOUNT OF DELAY OF MORE THAN 03 MONTHS, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS., MST. KATIJI & ORS (SUPRA), I DIRECT THE LD. CIT(A) TO CONDONE THE DELAY IN FILING OF THE APPEAL AND DECIDE THE APPEAL OF ASSESSEE ON MERIT AS PER FACT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I HOLD AND DIRECT ACCORDINGLY. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E., ON 27.07.2021. SD/- (R.K. PANDA) ACCOUNTANT MEMBER DELHI, DATED 27 TH JULY, 2021 VBP/- 8 ITA.NO.8489/DEL./2019 SHRI HARISH TYAGI, GHAZIABAD. COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC - 2 BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.