LABHUBEN KHIMJIBHAI BARAIYA ,RAJKOT V. INCOME TAX OFFICER, WARD 1(2)(4), RAJKOT

ITA 431/RJT/2023

AI Insights

The case involves Labhuben Khimjibhai Baraiya, an agriculturist and illiterate, who appealed against the ex-parte order passed by the Learned Commissioner of Income Tax (Appeals) at the National Faceless Appeal Centre, Delhi. The appeal was initially delayed due to various personal and professional circumstances, including the death of her brother-in-law and the relocation of her tax consultant. The Tribunal found sufficient cause to condone the delay and admitted the appeal for hearing. The primary issues in the appeal included the validity of the reopening of assessment and the additions made on account of undisclosed capital gains and unexplained investments in property.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 27278 (ITAT-RAJKOT)
• Duration Of Justice: 11 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 16-10-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 15-12-2023
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Assessee Lawyers: SAMIR BHUPTANI
• Keywords: Set aside; Unexplained investment
• Section: 147; 148; 144; 139

Judgement Text

" Page | 1 ITA No.431/RJT/2023 Labhuben Khimjibhai Baraiya CIN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER आयकरअपीलसं./ITA No.431/RJT/2023 (\u000bनधा\u000fरणवष\u000f / Assessment Year: (2011-12 ) (Physical Hearing) LabhubenKhimjibhai Baraiya Gokul, Shri Nathji Park-1, Block No.4, Near Shiv Drashti Park Rail Nagar Main Road Gujarat Vs. ITO Ward -1(2)(4) Rajkot \u0013थायीलेखासं./जीआइआरसं./PAN/GIR No.: ADEPV9112H (Assessee) (Respondent) Assessee by : Shri Samir Bhuptani, AR Respondent by : Shri Abhimanyu Singh Yadav, Sr.-DR Date of Hearing : 16/10/2024 Date of Pronouncement : 25/11/2024 आदेश / O R D E R PER DINESH MOHAN SINHA, AM: The appeal filed by the assessee, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [in short ‘NFAC/Ld. CIT(A)’], dated 02.03.2023, u/s 147 r.w.s 144 of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’), dated 04.12.2018 for Assessment Year 2011-12. 2. The assessee has raised following grounds of appeal: “1. Ld. CIT(A) erred in law as well as on facts in dismissing appeal of the appellant by passing ex- parte order without passing comments on merits. Page | 2 ITA No.431/RJT/2023 Labhuben Khimjibhai Baraiya 2. Ld. CIT(A) erred in law as well as on facts in not adjudicating grounds of appeal raised by the appellant. 3. Ld. CIT(A) erred in law as well as on facts in upholding validity of reopening of assessment. 4. Ld. CIT(A) erred in law as well as on facts in confirming addition of Rs. 67,70,000/- on account of alleged undisclosed capital gain on sale of agriculture property. 5. Ld. AO erred in law as well as on facts in not giving deduction of indexed cost of acquisition while computing capital gain and Ld. CIT(A) erred in law as well as on facts in not adjudicating this specific ground of appeal. 6. Ld. AO erred in law as well as on facts in making addition of Rs. 4,83,308/-on account of ⚫ alleged unexplained investment in purchase of property and Ld. CIT(A) erred in law as well as on facts in not adjudicating this specific ground of appeal. 7. Ld. AO erred in law as well as on facts in making addition of Rs. 9,00,000/- on account of alleged unexplained investment in purchase of property and Ld. CIT(A) erred in law as well as on facts in not adjudicating this specific ground of appeal. 8. On facts and circumstances the order passed by Ld. CIT(A) may kindly be set- aside to the file of Ld. CIT(A) for fresh adjudication.” 3. At the outset, the appeal is delayed by 226 days. Ld. AR has filed an application for condonation of delay. The relevant part of the condonation of delay are reproduced as follows: “2. In view of the same the present appeal ought to have been filed before Hon'ble Income Tax Appellate Tribunal on or before 1st May, 2023. However, this appeal is being filed today i.e. 13th December, 2023, accordingly there is delay of 226 days. The delay has caused on account of reasonable reasons and circumstances stated hereunder: a. The appellant is an agriculturist and an illiterate person. b. The assessee never came across income tax proceedings earlier. c. The assessment was finalised ex-parte as the notices uploaded on portal were never came to the knowledge of the assessee. d. The tax matter were handled by her brother in law, who expired. e. The tax matter was handled by her tax consultant, who in turn entrusted the work to CA for appeal. f. However, he closed the office and migrated to another city under such circumstances details required by the council for appeal could not be communicated to the assessee and the same led to make council handicapped and resulted into ex-parte order. Page | 3 ITA No.431/RJT/2023 Labhuben Khimjibhai Baraiya g. The tax consultant came to know about the proceedings when the notice in the case of co-owner came and he contacted the council for preparation in the month of November 2023. h. At that time when the status in the case of appellant was checked it was noticed that appeal of the assessee. i. The appellant was accordingly advised to file the appeal. j. Under these circumstances this appeal is filed in delay by 226 days, which may kindly be condoned.” 4. Ld. AR for the assessee has submitted that the appellant is an agriculturist and an illiterate person. The Assessment was passed ex-parte as the notices uploaded on portal were never came to the knowledge of the assessee. The brother in law of the assessee looking after the tax matter, who was expired. Thereafter, the appellant approached the tax consultant who closed the office and migrated to another city. Further no notice is served on the appellant on physical mode or no order is served by on the appellant. Therefore, the appellant is not aware about the order passed by the CIT(A). Hence, there is a delay occurred in filing the appeal against the impugned order. 5. On the contrary Ld. DR has submitted that due to such careless attitude and negligence on the part of the consultant nobody attended the appellate proceedings and Ld. ITO also passed ex-parte order u/s 144/ 147 of the Act. 6. We have heard both the parties and we note that it is because of the miscommunication between the assessee and tax consultant the appeal was not pursued before the Ld. CIT(A). The assessee should not be suffer because of mistake committed by the Tax Consultant. We find that there is a sufficient cause to condone the delay, therefore, we condoned the delay and admitted the appeal of the assessee for hearing. Page | 4 ITA No.431/RJT/2023 Labhuben Khimjibhai Baraiya 7. Brief facts of the case are that the appellant is an individual and did not file here return of income u/s 139 of the Act, as her total income did not exceed the chargeable to tax. The assessment was reopened by issuing notice under section 148 of the Act on 21.03.2018. Since the appellant was not served any notice under section 148 of the Act. No return was filed. Ld. AO passed an ex-parte order u/s 144 r.w.s. 147 of the Act on.04.12.2018 and made an addition of Rs.67,60,000/- on account of undisclosed capital gain on transfer of agriculture land and Rs.4,83,308/- & Rs.9,00,000/- on account of unexplained investment in purchasing non- agricultural land. 8. That Feeling Aggrieved by the order dated 04.12.2018 the appellant filed an appeal before the ld. CIT(A). That the appellant has not submitted any written submission during the course of appellate proceedings before the Ld. CIT(A). That the Ld. CIT(A) has decided the appeal of the assessee on the basis of grounds of appeal filed with Form 35. 9. Ld. AR for the assessee has submitted that assessee has appointed consultant to represent the case. The consultant is busy to shifting the office and migrated to another city. That the appellant prayed for a one more opportunity of hearing the case. 10. On the other hand, Ld. Sr. Departmental Representative fairly submitted that since the assessment order is passed on the basis of best judgment u/s 144 of the Act and CIT(A) has also dismissed the appeal of the assessee on the basis of record. However, the Ld. SR. DR has not objected to the prayer of the appellant. Page | 5 ITA No.431/RJT/2023 Labhuben Khimjibhai Baraiya 11. We have heard the matter and considered the submissions of both the parties and perused the material available on record. We note that the assessee challenged the validity of order of Ld. CIT(A) and filed an appeal before us. the Ld. AO passed an ex-parte order u/s 144 r.w.s. 147 of the Act on.04.12.2018 and made an addition of Rs.67,60,000/- on account of undisclosed capital gain on transfer of agriculture land and Rs.4,83,308/- & Rs.9,00,000/- on account of unexplained investment in purchasing non-agricultural land. Despite various opportunities given by the Ld. AO. We note that before the Ld. CIT(A), the appellant has not offered any submission to present this case. Ld. CIT(A) has passed the impugned order ex-parte and dismissed the appeal of the assessee. We are of the view that an opportunity should be given to the appellant to present his case. Accordingly in the facts and circumstances of the case and in the interest of justice, the impugned order of the Ld. CIT(A) is set aside and the matter is remanded to the record of Ld. A.O for fresh adjudication We further direct to the appellant to submit document and support of the return of income before the Ld. AO as an when asked for the Ld. AO of the relevant details and explanation to be furnished by the assessee. 12. In the result, the appeal of the assessee is Allowed for statistical purposes. Order is pronounced in the open court on 25/11/2024 Sd/- Sd/- (Dr. A.L. SAINI) (DINESH MOHAN SINHA) ACCOUNTANT MEMBER JUDICIALMEMBER Rajkot True Copy \u001bदनांक/ Date:25 /11/2024 Page | 6 ITA No.431/RJT/2023 Labhuben Khimjibhai Baraiya Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr. CIT 5. DR/AR, ITAT, Rajkot 6. Guard File By Order Assistant Registrar/Sr. PS/PS ITAT, Rajkot Date Initial 1. Draft dictated on (dictation sheet is enclosed with main file.) } PS 2. Draft placed before author PS 3. Draft proposed & placed before the second member 4. Draft discussed/approved by Second Member. 5. Approved Draft comes to the Sr.PS/PS 6. Kept for pronouncement on 7. File sent to the Bench Clerk 8. Date on which file goes to the AR 9. Date on which file goes to the Head Clerk. 10. Date of dispatch of Order. 11. Draft dictation sheets are attached PS "