MR. BHIMSINGH LALSINGH DASANA ,MUMBAI V. ITO WARD 41(3)(1), MUMBAI

ITA 214/MUM/2025

AI Insights

The case involves Mr. Bhimsingh Lalsingh Dasana, the proprietor of Kanak Jewellers, who appealed against the order of the National Faceless Appeal Centre (NFAC) / CIT(A), Mumbai, which was passed ex-parte. The appeal was initially delayed due to an inadvertent error in the email address used for communication, leading to the assessee not receiving notices for the hearing. The primary contention in the appeal was the addition of Rs. 52,00,000 as income from 'other sources' instead of capital gains, related to the sale of immovable property. The Tribunal found merit in the assessee's arguments and evidence, leading to the decision to restore the case for a fresh assessment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 398325 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-06-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2015-2016
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SATYAPRAKASH R.SINGH
• Assessee Lawyers: DINKLE HARIA
• Keywords: Additional evidence; TDS
• Section: 144

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER & SHRI PRABHASH SHANKAR, ACCOUNTANT MEMBER ITA No. 214/MUM/2025 (AY : 2015-16) (Physical hearing) Mr. Bhimsingh Lalsingh Dasana Kanak Jewellers, Shop No. 5, Krishna Van Building, Krishna Nagar, Boisar, Thane-401501. [PAN No. BFIPD4320J] Vs ITO, Ward-41(3)(1), Mumbai Appellant / Assessee Respondent / Revenue Assessee by Ms. Dinkle Haria, Advocate Revenue by Shri Satyaprakash R. Singh, CIT-DR Date of hearing 04.06.2025 Date of pronouncement 04.06.2025 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER; 1. This appeal by assessee is directed against the order of National Faceless Appeal Centre (NFAC) / Ld. CIT(A), Mumbai dated 15.10.2024 for assessment year (AY) 2015-16. 2. Rival submissions of both the parties have been heard and record perused. The Learned Authorised Representative (ld. AR) of the assessee fairly submits that there is delay of 30 days in filing appeal before Tribunal. The impugned order passed by ld. CIT(A) on 15.10.2024 and the assessee was required to file appeal on or before 14.10.2024, however, the appeal is filed on 13.01.2025. The ld. AR of the assessee submits that assessment order and order of First Appellate Authority is ex-parte. The assessee has explained the basis of non-compliance/non-appearance before assessing officer, ld. CIT(A) as well as delay in filing appeal in his affidavit. The ld. AR ITA No. 214/Mum/2025 Mr. Bhimsingh Lalsingh Dasana 2 of the assessee submits that assessee is assessee was running a small business of gold and jewellery in the name of ‘Amaj Jewellers’ from April 2010 till March 2015. In March, 2015, the assessee suffered losses and close such business. Again in April, 2020 started new business in the name of ‘Kanak Jewellers’. The assessee is studied upto 5th standard and unable to read or write English and not much aware of the technological use of electronic gadgets. The assessee is layman so far as income tax related proceedings are concerned. All his income tax related matters were handled by Mr. Kailas Shripal Jain till A.Y. 2014-15, his e-mail ID was of “[e-mail]”. When he started a new business, he engaged another consultant namely Javed Shaikh who is also a commerce graduate and his email ID is “[e-mail]” . Notices during assessment proceedings were issued on the e-mail id of Mr. Javed Shaikh. All notices if any issued through ITBA to email address of Javed Shaikh, which are being attended. In January 2023 Javed Shaikh informed the assessee that assessment order dated 12.10.2023 is passed against the assessee for A.Y. 2015-16. The assessee thereafter filed appeal before ld. CIT(A) in challenging the addition in the assessment order. While filing appeal before ld. CIT(A), his consultant Javed Shaikh engaged the services of Mr. Ashiya. Mr. Ashiya while filing appeal due to inadvertent mistake in Form 35 mentioned the e-mail address [e-mail] that is the e-mail id of old consultant of assessee. During hearing before ld. CIT(A) such notices may have been issued on such e-mail address which has not been communicated to the assessee. The copy of notices sent at other e-mail ITA No. 214/Mum/2025 Mr. Bhimsingh Lalsingh Dasana 3 which belongs to tax consultant who was no longer associated with the assessee. Thus, no communication of hearing of appeal came to the notice of assessee which resulted in passing the order of ex-parte by ld. CIT(A). The ld. AR submits that assessee realized about passing of the order when Mr. Ashiya checked the status of appeal somewhere in January, 2025 and appeal was filed immediately. The ld. AR submits that there is no intentional or deliberate delay in filing appeal before Tribunal. The assessee is really interested in pursuing his appeal on merit. 3. On merit of the case, the ld. AR of the assessee submits that during the relevant financial year, the assessee has sold immovable property to recoup with financial losses. The buyer deducted the tax at source which is reflected in Form AS26. The assessing officer made addition of Rs. 52,00,000/- while passing the assessment order under the head income from ‘other sources’. The ld. AR of the assessee submits that she had also filed application for admission of additional evidence, which includes the copy of purchase deed/agreement and sale agreement with detail of TDS and computation of total income. The ld. AR of the assessee submits that the assessee could not file such evidences before lower authorities as the assessee was ex-parte. Non-appearance before lower authorities has already been explained, therefore, the additional evidence filed by assessee may be admitted as such evidences are relevant for determination of real issue involved in the present appeal. The ld. AR of the assessee submits that lower authority has passed ex-parte order, therefore, matter may be restored back to the file of assessing officer for passing the assessing officer afresh, with the liberty to ITA No. 214/Mum/2025 Mr. Bhimsingh Lalsingh Dasana 4 assessee to file all relevant evidences to substantiate his claim and to contest all other issues emanating from assessment order. 4. On the other hand, the ld. CIT DR for the Revenue submits that assessee has not explained the delay in filing appeal before Tribunal in proper manner. The assessee is habitual defaulter in not attending hearing before lower authorities. The ld. CIT DR for the Revenue submits that delay may not be condoned. On merit, the ld. CIT DR for the Revenue submits that in case the delay is condoned, the matter may be restored back to the lower authorities for giving finding on merit. 5. We have considered the rival contentions of both the parties. On perusal of various grounds of appeal, we find that the assessee has raised multiple grounds of appeal, however, in our view, the substantial ground of appeal relates to addition of Rs. 52,00,000/- under head income from other sources vis-à-vis capital gain, long term or short term if any and if the assessee was allowed reasonable opportunity by lower authorities. In addition to aforesaid ground whether assessee has shown sufficient cause for filing appeal before this Tribunal. 6. Firstly, we are considering the plea of ld AR of the assessee in condoning the delay in filing appeal. We find that impugned order was passed by ld. CIT(A) on 15.10.2024. However, the present appeal is filed on 13.01.2025. Thus, there is delay of 30 days in filing appeal. However, registry of this Tribunal has calculated delay of 13 days only. Before us, the ld. AR of the assessee vehemently argued that due to wrong mentioning of e-mail furnished while filing Form 35, the assessee could not receive the notice of hearing and that ITA No. 214/Mum/2025 Mr. Bhimsingh Lalsingh Dasana 5 came to know only January, 2025, however, the status of appeal before ld. CIT(A) was checked. Such contention of assessee is supported by affidavit. We find that there is delay of 30 days only, the assessee is not going to be benefitted by filing the appeal belatedly, therefore, keeping in view, the principle of law on limitation that when technical consideration and cause of substantial justice are kept against each other, the cause of substantial justice may be preferred. We further find that delay in filing appeal in not intentional or delibrate, thus, the delay in filing appeal is condoned. Now, adverting to merits of the case. 7. We find that assessment was completed under section 144 r.w.s. 147 on 12.10.2023. The assessing officer while passing the assessment order made addition of Rs. 52,00,000/- by taking view that as per information in departmental record, the assessee has sold immovable property at Rs. 52,00,000/- which is also evident as per TDS detail in Form No. 26AS. The assessee was given various opportunities to substantiate the transaction but assessee failed to disclose capital gain and not offer such surplus for tax. The assessing officer treated the said value as stamp valuation authority of Rs. 52,00,000/- and treated the same as income from other sources. The ld. CIT(A) confirmed the action of assessing officer by holding that four notices under section 250 of Income Tax Act for fixing date of hearing were issued to the assessee but assessee failed to furnish any submission. Before us, the ld. AR of the assessee vehemently argued that assessee has good case on merit and is likely to succeed if one more opportunity to contest the case before lower authorities. The assessee has also furnished copy of purchase and sale ITA No. 214/Mum/2025 Mr. Bhimsingh Lalsingh Dasana 6 agreement / deed and computation of income including details of capital gain. Considering the fact the lower authorities have passed the order ex- parte, therefore, keeping in view substantial rights of the assessee are involved in the present case and the assessee has not availed opportunity of hearing before lower authorities, the matter may be restored back to the file of assessing officer to pass the order afresh. Needless to direct that before passing the order, the ld. CIT(A) shall allow reasonable opportunity to the assessee. The assessee is also directed to provide all necessary information to prove their object and activities of the ld. CIT(A). The assessee is allowed to file requisite evidence before assessing officer to substantiate the transaction of sale of asset. In the result, the substantial grounds of appeal are allowed for statistical purpose. 8. In the result, the appeal of assessee is allowed for statistical purpose. Order pronounced in the open Court on 04/06/2025 at the time of hearing. Sd/- PRABHASH SHANKAR ACCOUNTANT MEMBER Sd/- PAWAN SINGH JUDICIAL MEMBER MUMBAI, Dated:04 /06/2025 Biswajit Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Mumbai; and (5) Guard file. By Order Assistant Registrar ITAT, Mumbai "