Sh. Mahabir Singh, Sirsa V. ITO, Sirsa

ITA 938/CHANDI/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 4075 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Keywords: Recovery proceedings; Condonation of delay
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCHA, CHANDIGARH BEFORE SHRI. SANJAY GARG, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO.938/CHD/2017 ASSESSMENT YEAR: 2009-10 SH. MAHABIR SINGH VS. THE ITO S/O SH. HET RAM WARD 2 VPO BANI, RANIA DISTT. SIRSA SIRSA PAN NO. CDVPM5319N (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI. AMITOZ SINGH KAMBOJ REVENUE BY : SMT. CHANDRAKANTA DATE OF HEARING : 01/08/2018 DATE OF PRONOUNCEMENT : 07/08/2018 ORDER PER DR. B.R.R. KUMAR, A.M: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF THE LD. CIT(A), HISAR DT. 10/08/2016. 2. AT THE OUTSET IT IS STATED THAT THE APPEAL WAS T IME BARRED BY 240 DAYS FOR WHICH REQUEST FOR CONDONATION OF DELAY WAS FILED BY THE ASSESSEE. THE EXTRACT OF THE SAID REQUEST LETTER IS REPRODUCED HEREUNDER: 1. THAT I AM AN AGRICULTURIST HAVING ANCESTRAL LAND AN D AN ILLITERATE PERSON. 2. THAT I PRIMARILY OWN ONLY AGRICULTURAL LAND AND BEI NG ANCESTRAL PROPERTY, INCOME FROM THE SAME WAS TREATED AS HUF INCOME AS P ER THE ADVICE OF LEGAL CONSULTANT IN ALL THE PRECEDING YEARS. 3. THAT THE INCOME TAX OFFICER WARD 2, SIRSA VIDE ORDE R DATED 22/03/2013 HAD ASSESSED INCOME ON ACCOUNT OF AGRICULTURAL INCOME A ND INTEREST INCOME IN MY HAND AN D ACCORDINGLY APPEAL WITH WORTHY CIT(A) WAS FILED. 4. THAT I AM HAVING NO KNOWLEDGE OF THE TAXATION LAWS AND THE LAWS OF LAND AND RELIED ON THE THOROUGH KNOWLEDGE OF MY PREVIOUS COUNSEL. 5. THAT THE WORTHY CIT(A) PASSED AN ORDER DATED 10/08/ 2016 AND I WAS NO AWARE OF THE DUE DATE OF THE FURTHER APPEAL TO HON' BLE ITAT WHICH FALLS WITHIN 60 DAYS I.E. 09/10/2016 FROM THE RECEIPT OF THE SAID O RDER AND WAS UNDER THIS IMPRESSION THAT MY PREVIOUS COUNSEL HAD UNDERTAKEN THE DUE PROCESS. 2 6. THAT I HAVE MY RESIDENCE SITUATED IN DISTRICT SIRSA , HARYANA WHEREAS AS MY PREVIOUS COUNSEL HAD HIS OFFICE SITUATED IN DISTRIC T HISAR, HARYANA. 7. THAT MY PREVIOUS COUNSEL NEVER INFORMED ME ABOUT TH E STATUS OF FILING OF APPEAL BEFORE THE HON'BLE ITAT. 8. THAT THEREAFTER NO COMMUNICATION HAPPENED BETWEEN M E AND MY PREVIOUS COUNSEL AND ONLY ON THE CALL FROM INCOME T AX DEPARTMENT REGARDING RECOVERY OF TAX DUES. I CAME TO KNOW ABOUT THE FACT THAT THE ADDITIONS MADE IN MY CASE HAD NOT BEEN DELETED AND NO FURTHER APPEAL HAS BEEN FILED BY MY PREVIOUS COUNSEL. 9. THAT THEREAFTER I APPROACHED NEW COUNSELS AND ACCOR DINGLY APPEAL BEFORE THE HON'BLE ITAT WAS FILED ON 06/06/2017. 10. THAT IN THIS WAY THERE HAS BEEN A DELAY OF 240 DAYS AND THAT THERE HAD BEEN NO INTENTION FROM MY SIDE TO JEOPARDIZE THE IN TEREST OF THE REVENUE BY DELAYING THE PROCESS OF THE FILING OF APPEAL. MY AFFIDAVIT DETAILING THE AFORESAID FACTS MAY KIND LY BE PLACED BEFORE THE HON'BLE APPELLATE TRIBUNAL FOR THE CONDONATION OF T HE DELAY IN THE SUBMISSION OF THE APPEAL. 3. AGAINST THE SUBMISSION OF THE LD. AR, THE REVEN UE HAS FILED OBJECTIONS IN WRITING WHICH ARE AS UNDER: IN THIS CONNECTION, IT IS SUBMITTED THAT SHRI. MA HABIR SINGH S/O HET RAM, VILLAGE BANI, TEHSIL RANIA, SIRSA IS AGRICULTURIST. BRIEF F ACTS OF THE CASE ARE THAT HE HAD FILED APPEAL BEFORE CIT(A) AGAINST THE ORDER OF INCOME TA X OFFICER SIRSA DT. 22/03/2013. THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE VID E ORDER IN APPEAL NO. 17/SRS/TFR13-14 DT. 10/08/2016. ALTHOUGH THE ASSESSEE IS A AGRICULTURIST AND IS NOT AWARE OF / NOR CAN BE EXPECTED TO KNOW THE NUANCES OF INCOME TAX LAWS. THE EXPLANA TION OFFERED BY THE ASSESSEE VIDES PARA NO. 7 & 8 OF THE AFFIDAVIT BEFO RE THE HONBLE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH. A)THAT I HAVE MY RESIDENCE SITUATED IN DISTRICT SIR SA, HARYANA WHERE AS MY PREVIOUS COUNSEL HAD HIS OFFICE SITUATED IN DISTRIC T HISAR, HARYANA. B)THAT MY PREVIOUS COUNSEL NEVER INFORMED ME ABOUT THE STATUS OF FILLING OF APPEAL BEFORE THE HONBLE ITAT. IS VAGUE AND EVASIVE. THOUGH THERE IS TOTAL INACTIO N AND GROSS NEGLIGENCE ON THE PART OF THE ASSESSEE FOR NOT ENQUIRING THE STATUS O F APPEAL FROM HIS COUNSEL, YET TECHNICALITIES SHOULD NOT PREVAIL OVER THE JUSTICE. 4. WE HAVE HEARD BOTH THE PARTIES AND AFTER GOING T HROUGH THE CONTENTS OF THE APPLICATION SUPPORTED BY THE AFFIDAVIT FILED BY THE ASSESSEE, WE FIND THAT THE DELAY OF 240 DAYS HAS OCCURRED FOR REASONS BEYOND T HE CONTROL OF THE ASSESSEE. WE FURTHER NOTE THAT NO BENEFIT IS DRAWN BY THE ASS ESSEE IF THE DELAY IS CONDONED NOR IS ANY LOSS VISITED ON THE REVENUE ON ACCOUNT OF THE SAME. FURTHER IT CANNOT ALSO BE SAID THAT ANY VESTED RIGH T STOOD CREATED IN FAVOUR OF THE REVENUE ON ACCOUNT OF THE LATE FILING OF THE AP PEAL BY THE ASSESSEE, WHICH WOULD BE UPSET BY THE CONDONATION OF DELAY. ACCORDI NGLY BEING SATISFIED WITH 3 THE EXPLANATION OF THE ASSESSEE WE HOLD THAT THE DE LAY OF 240 DAYS HAS OCCURRED FOR REASONS BEYOND THE CONTROL OF THE ASSE SSEE AND THE DELAY IS ACCORDINGLY CONDONED. 5. IN THE PRESENT APPEAL ASSESSEE HAS RAISED THE FO LLOWING GROUNDS: 1. THAT THE NOTICE ISSUED UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 TO THE ASSESSEE MAY BE RENDERED TO BE INVALID ON THE ACCOU NT OF NON MENTIONING OF THE STATUS OF THE ASSESSEE ON THE SAID NOTICE. 2. THAT THE LD. AO HAS ERRED IN ASSESSING THE INCOM E EARNED ON THE ACCOUNT OF BANK INTEREST OF RS. 3,32,836/- IN THE STATUS OF TH E INDIVIDUAL AS THE SAME BELONGS TO THE HUF OF THE ASSESSEE. 3. THAT THE LD. AO WAS NOT JUSTIFIED IN ASSESSING T HE AGRICULTURAL INCOME AT RS. 5,00,000/- IN THE HANDS OF ASSESSEE ALTHOUGH SUCH I NCOME BELONGED TO THE HUF OF THE ASSESSEE. 4. THAT THE LD. AO HAS ERRED IN COMPLETING THE STAT US OF INDIVIDUAL WHILE THE INCOME DERIVED DURING THE YEAR BELONGED TO THE HUF OF THE ASSESSEE. 6. GROUND NUMBER 1AND 2 NOT PRESSED. GROUND NO. 3 RELATES TO ASSESSING OF THE AGRICULTUR AL INCOME IN THE HANDS OF THE ASSESSEE THOUGH THE LAND AND SUBSEQUENT INCOME BELO NGS TO HUF. 7. BEFORE US, THE LD. AR ARGUED THAT THE INCOME DER IVED FROM THE AGRICULTURAL LAND BELONGS TO THE HUF WHERE AS THE ASSESSING OFFI CER HAS WRONGLY TAKEN IT IN THE HANDS OF THE ASSESSEE THAT TOO ON ESTIMATE BASI S. 8. IT WAS ARGUED THAT FOR THE ASSESSMENT YEAR 2007- 08 THE REVENUE HAS ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE LA ND BELONGS TO HUF INDEED. THE RELEVANT PART OF THE LD. CIT(A)S ORDER IS AS U NDER: THE APPELLANT FILED COPY OF INTKAAL/MUTATION DGITED 16/12/1929 AND ALSO COPY OF INTKAAL/MUTATION DATED 15/11/1958 ALONG WITH HIS AF FIDAVIT WHEREIN IT WAS STATED THAT THE AGRICULTURE LAND AROUND 10-12 ACRES SITUAT ED IN VILLAGE BAHI, TEHL RANIA AND DISTRICT SIRSA (HARYANA) WAS TRANSFERRED BY HIS GRAND FATHER SH DHAYANA RAM TO HIS FATHER SH. HET RAM VIDE MUTATION DATED 16-12 -1929 AND SUBSEQUENTLY THE SAME LAND WAS TRANSFERRED BY HIS FATHER L SH HET RA M TO HIM VIDE MUTATION DATED 15-11-1958. HENCE AS PER THE REVENUE RECORDS THE AG RICULTURE LAND BEING ANCESTRAL BELONGS TO THE HUF OF THE APPELLANT. IN VIEW OF THE ABOVE, THE ADDITION MADE BY THE AO O N ACCOUNT OF AGRICULTURE INCOME AMOUNTING TO RS 500000/- IS DELETED AND THIS GROUND OF APPEAL IS ALLOWED. 9. SINCE THE ISSUE STANDS ADJUDICATED IN FAVOUR OF THE ASSESSEE IN THE EARLIER YEAR AND AGAINST THE ASSESSEE FOR THE INSTANT YEAR, TO HAVE AN UNIFORMITY OF JUSTICE, THE ISSUE IS REFERRED BACK TO THE FILE OF CIT(A) TO CHECK THE FACTS ON 4 RECORD, DETERMINE THE OWNERSHIP OF THE LAND AND SUB SEQUENTLY TAKE A CONSIDERED DECISION AS TO WHO IS TO BE ASSESSED WIT H REGARD TO THE AGRICULTURAL INCOME , WHETHER THE ASSESSEE AS INDIVIDUAL OR HUF AS THE OWNER OF THE LAND TAKING INTO CONSIDERATION ALL THE MATERIAL FACTS. 10. AS A RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (SANJAY GARG) (DR. B.R.R. KUM AR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07/08/2018 AG COPY TO: 1. THE APPELLANT, 2.THE RESPONDENT, 3.THE CIT,4.THE CIT(A), 5.THE DR