MANJU BHERULAL JAIN ,MUMBAI V. ITO - 2(1), MUMBAI

ITA 4303/MUM/2025

AI Insights

The case involves two appeals filed by Bherulal A. Jain HUF and Manju Bherulal Jain against the orders passed by the National Faceless Appeal Centre (NFAC)/CIT(A) for the assessment year 2012-13. The appeals were related to the disallowance of Long Term Capital Gain (LTCG) claimed as exempt under section 10(38) of the Income Tax Act, 1961, from share transactions in M/s Nyssa Corporation. The ITAT noted a significant delay in filing the appeals due to various administrative oversights and lack of communication, which they found justifiable under the circumstances. The Tribunal emphasized the importance of substantial justice over technicalities and thus condoned the delay and restored the matter for a fresh hearing.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 793436 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 30-06-2025
• Other Referred Cases: Land Acquisition Collector Vs MST Katiji and others
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA NAIR
• Assessee Lawyers: SUCHEK ANCHALIYA
• Keywords: Condonation of delay; Reasonable cause
• Section: 148; 143(3)

Judgement Text

"1 IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER I.T.A. No. 4302/Mum/2025 Assessment Year: 2012-13 Bherulal A. Jain HUF 8, Heera Panna Bldg, BP Road, Bhayander East, Thane – 401 105. PAN – AAFHB3417F Vs ITO, Ward - 2(1) Qureshi Mansion, Gokhale Road, Thane. (Appellant) (Respondent) I.T.A. No. 4303/Mum/2025 Assessment Year: 2012-13 Manju Bherulal Jain B-174, Divine Heritage, Jesal Park, Bhayander East, Thane – 401 105. PAN – AFEPJ1199J Vs ITO, Ward - 2(1) Qureshi Mansion, Gokhale Road, Thane. (Appellant) (Respondent) Assessee by Shri Suchek Anchaliya Revenue by Ms. Smita Nair, Sr. AR Date of Hearing 01.09.2025 Date of Pronouncement 22.09.2025 ORDER Per: SHRI. SANDEEP GOSAIN, J.M.: The present appeals have been filed by the two different assessees challenging the different impugned orders dt. 06.07.2024 & 04.07.2024 passed under section 250 of the Income Tax Act, 1961 (‘the Act’), by the National Faceless Appeal Centre (NFAC) / CIT(A) for the assessment year 2012- 13. Printed from counselvise.com 2 ITA No. 4302 & 4302/Mum/2025 2. Since all the issues involved in these two appeals are common and identical, therefore, they have been clubbed, heard together and consolidated order is being passed for the sake of convenience and brevity. I shall take ITA No. 4302/Mum/2025, A.Y 2012-13 as lead case and facts narrated therein. ITA No. 4302/Mum/2025, A.Y 2012-13 3. At the very outset, I noticed that there is delay of 303 days in filing present appeal and in this regard an affidavit for seeking condonation of delay has been filed by the assessee, wherein it has been mentioned as under: Affidavit for Condonation of Delay in Filing the Appeal before Hon'ble ITAT, Mumbai against the Order u/s 250 of the Income Tax Act, 1961 passed by Commissioner of Income Tax (Appeal) through National Faceless Appeal Centre, dated 06.06.2024. 1) I, Bherulal A. Jain, Karta of Bherulal A. Jain HUF, aged 54 years, having PAN ADPPJ8259C at present residing at B 174, Divine Heritage, Jesal Park, Bhayander East, Thane 401 105, do solemnly affirm and state on oath as under: 2) That an information in the case of the Bherulal A. Jain HUF has been received that the appellant has carried out share transaction in the scrip of M/s Nyssa Corporation, wherein unrealistic price movement has been observed and gained Term Capital Gain (LTCG) of Rs. 24,33,739/- and claimed as exempt u/s 10(38) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act'). 3) The Ld. AO, based on the information received in the appellant's case, issued a notice for reopening the assessment u/s 148 of the Act on 31.03.2019. Subsequently, the assessment was completed by disallowing a LTCG of Rs. 24,33,739/- arising from trading in the shares of M/s Nyssa Corporation. The order was passed u/s 143(3) r.w.s. 147, of the Act as on 24.12.2019. Aggrieved by the above order the appellant has filed an appeal before the Hon'ble Printed from counselvise.com 3 ITA No. 4302 & 4302/Mum/2025 CIT(A) through NFAC, by filing a Form 35 on 05.02.2020. The Hon'ble CIT(A) through NFAC has passed the order u/s 250 of the Act on 06.06.2024, wherein he confirmed the addition made by the Ld. AO. 4) That the HUF does not have any regular business activities or income; therefore, the Income Tax portal is accessed infrequently, and even then, it is typically accessed by the Chartered Accountant (CA) solely for the purpose of filing the Income Tax Return. 5) That the email ID and mobile number registered on the ITBA portal at the relevant time belonged to an employee who was working as an accountant with the Karta of the appellant and had left the employment long ago. The said employee never communicated or informed the appellant about any notice or intimation received from the Income Tax Department in relation to the present case. 6) That the Appellant had entrusted the handling of the appeal proceedings to their CA. Unfortunately, the CA failed to diligently track the status of the proceedings and did not check the ITBA portal for updates and orders. This oversight led to the Appellant remaining uninformed about the disposal of the appeal. 7. That the Appellant became aware of the order passed by the Ld. CIT(A) through the NFAC on 17.05.2025, when a communication regarding an outstanding demand was received in the case of a related party of the Appellant. Upon receiving this communication, the Appellant immediately verified the status of its own appeal on the ITBA portal and discovered that a considerable amount of time had already elapsed since the passing of the order by the Ld. CIT(A) through NFAC 8) That upon knowledge of the order, the appellant took the legal consultancy and was advised to file the appeal against the impugned disallowance of LTCG, hence the appellant is in appeal before your honour. Accordingly, the appellant has filed an appeal before Hon'ble ITAT, Mumbai, on 30.06.2025, accompanied by an application for condonation of delay stating the above facts. 9) That, as per the provisions of section 253 of the Act, the appeal before the Tribunal was required to be filed within 60 days from the date of receipt of order. In the present case the order of the Hon'ble CIT(A)/ NFAC on 06.06.2024, accordingly, the respondent was required to file appeal till 05.08.2024. However, due to aforementioned reason, the appeal is being filed on 30.06.2025. Accordingly, it is submitted that in the present case there is a delay of 329 days in filing the appeal. Printed from counselvise.com 4 ITA No. 4302 & 4302/Mum/2025 10) That in brief, the appellant submit that the delay was due to the misunderstanding of implication of the assessment order and not intimation of any notice issued by the department and the appellant has no intension to delay the process of filing appeal. Further, the said delay is a bonafide and the respondent had no purposeful intention in delaying the filing of the appeal. It is therefore humbly submitted that the delay in filing the appeal may kindly be condoned in the interest of justice. I Bherulal A. Jain, Karta of Bherulal A. Jain HUF, the above-named deponent do * hereby verify that the contents of para 1 to 10 are true to the best of my knowledge and belief. 3. On the other hand Ld. DR refuted the contents contained in the application and requested for dismissal of the same. 4. After having heard the counsel for both the parties on this application for seeking condonation of delay and considering the entire factual position as explained before us and also keeping in view the principles laid down by Hon'ble Supreme Court in the case of Land Acquisition Collector Vs MST Katiji and others 1987 AIR 1353 Supreme Court, wherein it has been held that were substantial justice is pitted against technicalities of non deliberate delay, then in that eventuality substantial justice is to be preferred. In our view the principals of advancing substantial justice is of prime importance. Hence considering the explanation put forth by the Assessee by justifiably and properly explaining the delay which occurred in filing the appeal and construing the expression \"sufficient cause\" liberally I am inclined to condone the delay in filing the appeal before the Tribunal. Printed from counselvise.com 5 ITA No. 4302 & 4302/Mum/2025 Therefore I condone the delay and admit the appeal to be heard on merits. 5. I also noticed that assessee was ex-parte before Ld. CIT(A). In this regard Ld. AR explained the circumstances before the bench that there was ‘sufficient cause’ which prevented the assessee to represent properly before Ld. CIT(A). On the other hand DR relied upon the orders passed by the revenue authorities. 6. Be that as it may, without going into the merits of the issues raised by the assessee and considering the fact that there was reasonable cause, because of which assessee could not put effective representation before Ld. CIT(A). Hence the Bench is of the view that one more opportunity be given to the assessee to represent his case before Ld. CIT(A). Therefore considering the overall circumstances of the present case, I deem it proper to restore the matter back to the file of Ld. CIT(A) for deciding the appeal afresh by providing one more opportunity to the assessee. Since there was non cooperation on behalf of the assessee during the proceedings before the revenue authorities therefore a cost of Rs. 2,000/- is imposed upon the assessee which shall be deposited in the Prime Minister Relief Fund and a copy of the receipt shall be placed on file before Ld. CIT(A) within 30 days from the date of receipt of this order. The assessee shall not seek any adjournment on frivolous grounds and shall remain cooperative during the course of proceedings. Printed from counselvise.com 6 ITA No. 4302 & 4302/Mum/2025 7. Before parting, I make it clear that my decision to restore the matter back to the file of the Ld. CIT(A) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the Ld. CIT(A) independently in accordance with law. 8. In the result, the appeal filed by the assessee is allowed for statistical purposes. ITA No. 4303/Mum/2025 AY 2012-13 9. as the facts and circumstances in this appeal are identical to ITA No. 4302/Mum/2025 for the AY 2012-13 (except variance in figures) would apply ‘mutatis mutandis’ for this appeal also. Accordingly, the grounds of appeal of the assessee are allowed for statistical purpose. 10 . In the result, both the appeals filed by the assessee are allowed for statistical purposes. Order pronounced in the open court on 22/09/2025 Sd/- (SANDEEP GOSAIN) (JUDICIAL MEMBER) Mumbai: Dated: 22/09/2025 KRK, Sr. PS. Printed from counselvise.com 7 ITA No. 4302 & 4302/Mum/2025 Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order (Asstt. Registrar) ITAT, Mumbai Printed from counselvise.com "