Chandrapal, Ghaziabad V. ITO ward-1(2), Ghaziabad

ITA 8964/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3671 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAURA BH TYAGI
• Keywords: Opportunity of being heard; Set aside
• Section: 142(1); 201; 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI [THROUGH VIDEO CONFERENCING] BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA.NO.8964/DEL./2019 ASSESSMENT YEAR 2010-2011 SHRI CHANDRAPAL, H.NO.132, SIKHRANI, LONI, GHAZIABAD 201 102 UTTAR PRADESH. PAN AIRPC6305K VS. THE INCOME TAX OFFICER, WARD 1 (2), O/O. CIT(A), CGO COMPLEX-1, NEAR HAPUR CHUNGI, GHAZIABAD. U.P. PIN - 245101 (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI SAURA BH TYAGI, C.A. FOR REVENUE : SH. R.K. GUPTA, SR. DR DATE OF HEARING : 1 2. 1 0.2021 DATE OF PRONOUNCEMENT : 1 2. 1 0.2021 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE EX-PARTE ORDER DATED 15.01.2019 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 EX-PARTE ORDER OF THE LD. CIT(A) IN UPHOLDING THE VALIDITY OF THE RE- ASSESSMENT PROCEEDINGS AS WELL AS SUSTAINING VARIOUS 2 ITA.NO.8964/DEL./2019 SHRI CHANDRAPAL, GHAZIABAD. ADDITIONS MADE BY THE A.O. IN THE ORDER PASSED UNDER SECTION 144 READ WITH SECTION 147 OF THE I.T. ACT, 1961. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL. AS PER THE AIR INFORMATION RECEIVED, THE ASSESSEE SOLD HIS RURAL AGRICULTURAL LAND ALONG WITH 04 OTHERS FOR AN AMOUNT OF RS.73,05,000/- AND THE SHARE OF THE ASSESSEE WAS RS.14,61,000/-. THE A.O. ISSUED NOTICES DATED 18.12.2012, 03.12.2017 AND 20.02.2017 ASKING THE ASSESSEE TO EXPLAIN AS TO WHETHER ANY CAPITAL GAIN HAS BEEN DECLARED BY THE ASSESSEE. SINCE THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE, THE A.O. AFTER RECORDING REASONS REOPENED THE ASSESSMENT AND ISSUED NOTICE UNDER SECTION 148 OF THE I.T. ACT, 1961 ON 29.03.2017 THROUGH SPEED POST. HOWEVER, THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME. THE A.O, THEREFORE, ISSUED NOTICE UNDER SECTION 142(1) ON 19.07.2017 FIXING THE DATE OF HEARING TO 02.08.2017. SINCE THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE, THE A.O. AGAIN ISSUED ANOTHER NOTICE DATED 10.08.2017 FIXING THE CASE FOR HEARING ON 24.08.2017. SINCE THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE, THE A.O. PROCEEDED 3 ITA.NO.8964/DEL./2019 SHRI CHANDRAPAL, GHAZIABAD. TO COMPLETE THE ASSESSMENT UNDER SECTION 144 OF THE I.T. ACT, 1961. SINCE THE 1/5 TH SHARE OF THE ASSESSEE IN THE PROPERTY SOLD FOR RS.73,05,000/- WAS RS.14,61,000/-, THE A.O. TREATED THE SAME AS THE INCOME OF THE ASSESSEE AND ASSESSED THE INCOME OF THE ASSESSEE AT RS.14,61,000/-. 3.1. THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) AGAINST THE EX-PARTE ORDER PASSED BY THE A.O. SINCE THERE WAS DELAY OF MORE THAN 03 MONTHS IN FILING OF THE APPEAL, A DEFECT NOTICE WAS ISSUED TO THE ASSESSEE TO EXPLAIN THE DEFECT. THE NOTICE WAS SENT IN THE ADDRESS GIVEN IN FORM NO.35 THROUGH SPEED POST AND EMAIL. SINCE THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE, THE LD. CIT(A) HELD THAT THE APPEAL FILED BY THE ASSESSEE IS NON-EST BEING DEFECTIVE AND ACCORDINGLY DISMISSED THE APPEAL OF ASSESSEE IN LIMINE. 4. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4.1. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS A DELAY OF 03 DAYS IN FILING OF THE APPEAL BEFORE 4 ITA.NO.8964/DEL./2019 SHRI CHANDRAPAL, GHAZIABAD. THE TRIBUNAL, FOR WHICH, THE ASSESSEE HAS FILED A CONDONATION APPLICATION ALONG WITH MEDICAL CERTIFICATES. HE SUBMITTED THAT IN THE INTEREST OF JUSTICE, THE DELAY IN FILING OF THE APPEAL BEFORE THE TRIBUNAL SHOULD BE CONDONED. 5. AFTER HEARING BOTH THE SIDES, I CONDONE THE DELAY IN FILING THE APPEAL OF THE ASSESSEE BEFORE THE TRIBUNAL AND THE APPEAL IS ADMITTED FOR ADJUDICATION. 6. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE NOTICE ISSUED BY THE A.O. WAS SENT TO AN ADDRESS WHICH WAS INCOMPLETE WITHOUT GIVING HOUSE NUMBER ETC., THE NOTICE COULD NOT BE RECEIVED BY THE ASSESSEE, FOR WHICH, THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE. HE SUBMITTED THAT BEFORE THE LD. CIT(A) THE APPEAL WAS FILED WHICH WAS DELAYED BY MORE THAN 03 MONTHS. HOWEVER, THE LD. CIT(A) WITHOUT CONSIDERING THE GENUINE DIFFICULTIES FACED BY THE ASSESSEE DUE TO HIS BAD HEALTH, DID NOT CONDONE THE DELAY AND DISMISSED THE APPEAL OF THE ASSESSEE TREATING THE SAME AS NON-EST. REFERRING TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS., MST. KATIJI & ORS., REPORTED IN [1987] 167 ITR 471 (SC) 5 ITA.NO.8964/DEL./2019 SHRI CHANDRAPAL, GHAZIABAD. AND VARIOUS OTHER DECISONS, HE SUBMITTED THAT IN THE INTEREST OF JUSTICE THE DELAY IN FILING OF THE APPEAL BEFORE THE LD. CIT(A) SHOULD BE CONDONED AND THE APPEAL BE HEARD ON MERIT. HE, HOWEVER, SUBMITTED THAT SINCE THE A.O. HAS PASSED EX-PARTE ORDER, THE MATTER MAY KINDLY BE SET ASIDE TO THE FILE OF A.O. 7. THE LD. D.R. ON THE OTHER HAND, T STRONGLY OPPOSED THE ARGUMENTS ADVANCED BY THE ASSESSEE AND SUBMITTED THAT THE A.O. HAS ISSUED NOTICE IN THE ADDRESS AS PER THE SALE DEED. THE LD. CIT(A) HAS ALSO ISSUED NOTICE IN THE ADDRESS GIVEN AS PER FORM NUMBER 35. FURTHER THERE IS A DELAY OF MORE THAN 03 MONTHS IN FILING OF THE APPEAL BY THE ASSESSEE BEFORE THE LD. CIT(A). ALL THESE FACTS SHOW THAT THE ASSESSEE IS NOT SERIOUS IN PROSECUTING THE APPEAL. HE ACCORDINGLY SUBMITTED THAT THE ADDITION MADE BY THE A.O. AND SUSTAINED BY THE LD. CIT(A) SHOULD BE UPHELD. IN HIS ALTERNATIVE CONTENTION, HE SUBMITTED THAT THE MATTER MAY BE SET ASIDE TO THE FILE OF THE LD. CIT(A). 6 ITA.NO.8964/DEL./2019 SHRI CHANDRAPAL, GHAZIABAD. 8. I HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE RECORD. IT IS AN ADMITTED FACT THAT DUE TO NON-APPEARANCE OF THE ASSESSEE BEFORE THE A.O. DESPITE NUMBER OF OPPORTUNITIES GRANTED, THE A.O. WAS CONSTRAINED TO PASS THE EX-PARTE ORDER UNDER SECTION 144/ 147 OF THE I.T. ACT, 1961. I FIND THE LD. CIT(A) ISSUED NOTICE OF HEARING TO THE ASSESSEE IN THE ADDRESS GIVEN AS PER FORM NO.35 ASKING THE ASSESSEE TO EXPLAIN THE DELAY IN FILING OF THE APPEAL. HOWEVER, THERE WAS NO RESPONSE FROM THE SIDE OF THE ASSESSEE, FOR WHICH, THE LD. CIT(A) WAS CONSTRAINED TO TREAT THE DEFECT AS NON-CURABLE AND TREATED THE APPEAL AS NON-EST BEING DEFECTIVE AND, THEREFORE, DISMISSED THE APPEAL OF ASSESSEE IN LIMINE. IT IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT SINCE THE ASSESSEE WAS NOT KEEPING GOOD HEALTH, THE APPEAL COULD NOT BE FILED IN TIME AND, THEREFORE, THE DELAY IN FILING OF THE APPEAL SHOULD BE CONDONED. 8.1. THE HONBLE SUPREME COURT IN THE CASE OF COLLECTOR, LAND ACQUISITION VS., MST. KATIJI & ORS., REPORTED IN [1987] 167 ITR 471 (SC) OBSERVED THAT WHEN SUBSTANTIAL 7 ITA.NO.8964/DEL./2019 SHRI CHANDRAPAL, GHAZIABAD. 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 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. 8 ITA.NO.8964/DEL./2019 SHRI CHANDRAPAL, GHAZIABAD. 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 TECHNICAL GROUNDS BUT BECAUSE IT IS CAPABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. 8.2. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE AND IN VIEW OF JUDGMENT OF HONBLE SUPREME COURT CITED (SUPRA), I DIRECT THE LD. CIT(A) TO CONDONE THE DELAY OF 03 MONTHS IN FILING OF THE APPEAL BEFORE HIM AND DECIDE THE ISSUE ON MERIT 9 ITA.NO.8964/DEL./2019 SHRI CHANDRAPAL, GHAZIABAD. AS PER FACT AND LAW, BY GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO HEREBY DIRECTED TO APPEAR BEFORE THE LD. CIT(A) AND SUBSTANTIATE HIS CASE WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT, FAILING WHICH, THE LD. CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E., ON 12.10.2021. SD/ - (R.K. PANDA) ACCOUNTANT MEMBER DELHI, DATED 12 TH OCTOBER, 2021 VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.