MR BIJENDRA RAMKAILASH SINGH,MUMBAI V. INCOME TAX OFFICER-WARD 24(1)(3), MUMBAI

ITA 3157/MUM/2024

AI Insights

The case involves Mr. Bijendra Ramkailash Singh, who appealed against the order of the National Faceless Appeal Centre (NFAC), Delhi, concerning the assessment year 2017-18. The primary contention was the addition of Rs. 6,50,00,000 as long-term capital gains from the sale of immovable property, which the assessee argued was not executed due to non-payment of consideration, rendering the deed inoperative. The CIT(A) had dismissed the appeal due to non-compliance with hearing notices, which the assessee attributed to his unfamiliarity with electronic communication. The Tribunal found merit in the assessee's reasons for the delay and restored the case to the CIT(A) for a fresh decision.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 33688 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-03-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Other Referred Cases: Collector Land Acquisition vs Mst, Katiji & Ors. Civil Appeal No. 460 of 1987
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MONIKA PANDE
• Assessee Lawyers: VIPUL JOSHI PRASHANT GHUMARE
• Keywords: Condonation of delay; Capital Gains; Valuation report; Benefit of exemption
• Section: 48

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “B”, MUMBAI BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER ITA No. 3157/Mum/2024 Assessment Year 2017-18 Mr. Bijendra Ramkailash Singh J/277, Tarapore Garden, Oshiwara, New Link Road, Andheri (West), Mumbai- 400053. PAN: ALHPS 0033 K Vs. ITO, Ward-24(1)(3), Piramal Chambers, Lalbaug, Mumbai. (Appellant) (Respondent) Present for: Assessee by : Shri Vipul Joshi / Prashant Ghumare Revenue by : Ms. Monika Pande, Sr. DR Date of Hearing : 05.02.2025 Date of Pronouncement : 19.03.2025 O R D E R PER AMARJIT SINGH, ACCOUNTANT MEMBER: The appeal of the assessee for the assessment year 2017-18 is directed against the order dated 27.07.2023 passed by the ld. National Faceless Appeal Centre (NFAC), Delhi. The assessee has raised the following grounds of appeal: “1. THE ORDER BAD. ILLEGAL AND WITHOUT JURISDICTION 1.1 In the facts and the circumstances of the case, and in law, the appellate order framed by the Commissioner of Income tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, ['Ld. CIT (A)'] is bad, illegal and without jurisdiction, as the same is framed in breach of the statutory provisions and the scheme and as otherwise also is not in accordance with the law. ITA No. 3157/Mum/2024 Mr. Bijendra Ramkailash Singh A.Y. 2017-18 2 1.2 Otherwise also, in the facts and the circumstances of the case, and in law, the appellate order so framed by the Ld. CIT (A) is bad and illegal void as the same is arbitrary and perverse. 2. EX-PARTE ORDER 2.1 The Ld. CIT (A) erred in passing the order ex-parte. 2.2 While doing so, the Ld. CIT (A) failed to appreciate that the non- attendance /non-reply was for the reasons not attributable to the Appellant/ beyond the control of the Appellant and not deliberate or intentional. 2.3 It is submitted that in the facts and the circumstances of the case, and in law, no such action was called for. 3. ASSESSMENT FRAMED SUBJECT TO REVISION IS BAD IN LAW 3.1 It is submitted that in the facts and circumstances of the case and in law, the assessment order framed by the Income-tax Officer, Ward- 24(1)(3) ('the A.O.') is bad in law as the same was passed subject to revision up on receipt of valuation report. 4. ADDITION AS LONG TERM CAPITAL GAINS ON SALE OF IMMOVABLE PROPERTY 4.1 The Ld. CIT (A) erred in confirming the action of the A.O. in making the addition on account of alleged capital gains arising from the plot of land belonging to the Appellant. 4.2 While doing so, the Ld. CIT (A) failed to appreciate that - (i) No transfer of immovable property had taken place during the previous year; and (ii) More particularly, the Deed of Conveyance entered into during the year had got cancelled and became inoperative on account of non- payment of the consideration, in terms of the clause of the said Deed. 4.3 It is submitted that in the facts and the circumstances of the case, and in law, no capital gain tax liability accrued during the year. 5. ADDITION OF RS. 6.50.00.000/- AS LONG-TERM CAPITAL GAINS ITA No. 3157/Mum/2024 Mr. Bijendra Ramkailash Singh A.Y. 2017-18 3 5.1 Assuming but not admitting that the transfer of the land had taken place during the previous year, the computation of the capital gains is arbitrary, excessive and not in accordance with the law. 5.2 More particularly, the Ld. CIT (A) failed to appreciate that- (i) The full value of consideration actually accrued was not Rs. 6,50,00,000/-but Rs. 4,38,00,000/-; (ii) Such consideration was required to be reduced by indexed cost of acquisition, indexed cost of improvement and the expenses as available in terms of section 48 of the Act; and (iii) The Appellant was entitled for the benefit of exemption u/s. 54/54F of the Act. 5.3 It is submitted that in the facts and circumstances of the case and in law, the addition of Rs. 6,50,00,000/- is bad and illegal. 6. LIBERTY The Appellant craves leave to add, alter, delete or modify all or any the above ground at the time of hearing.” 2. There was delay in filing the appeal by 261 days. The assessee filed an affidavit dated 25.07.2024 requesting for condoning the delay. In the affidavit, assessee submitted that the notice of hearing and ex-parte order passed by the ld. CIT(A) was sent on the e-mail of the assessee however being a senior citizen assessee was not used to be active on the electronic media, therefore, notices and the order could not be addressed by the assessee. Thereafter, on receiving of intimation of outstanding demand on 16.05.2024, the assessee came to know that his appeal has been dismissed by the ld. CIT(A). In the process, the delay happened in filing the appeal. After hearing the ld. Counsel and the submission filed on the affidavit, we consider that there is a ITA No. 3157/Mum/2024 Mr. Bijendra Ramkailash Singh A.Y. 2017-18 4 bonafide reason for delay in filing the appeal as discussed. The Hon’ble Supreme Court in the case of Collector Land Acquisition vs Mst, Katiji & Ors. Civil Appeal No. 460 of 1987 dated 19.12.1987 held that sufficient cause for the purpose of condonation of delay should be interpreted with a view to do even handed justice on merit in preference to the approach which scuttles a decision on merit. In the light of the above facts and findings, we condone the delay of 261 days in filing this appeal in order to decide the appeal on merit. 3. Fact in brief is that return of income declaring total income of Rs. 3,20,140/- was filed on 07.02.2018. The assessment u/s 143(3) of the Act was finalized on 21.12.2012 after making addition of Rs. 6,50,00,000/- as a long term capital gain on a sale of immovable property. The assessing officer stated that assessee failed to furnish purchase deed and other related submission, therefore, whole consideration of sale was added to the total income of the assessee. 4. The assessee filed appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee on the ground that assessee failed to make compliance to the notice of hearing issued by the ld. CIT(T(A). 5. Heard both the sides and perused the material on record. Without reiterating the fact as discussed above while condoning the delay in filing the appeal, the assessee could not make compliance before the ld. CIT(A) because he was not very active on ITA No. 3157/Mum/2024 Mr. Bijendra Ramkailash Singh A.Y. 2017-18 5 the electronic media. Therefore, notice of hearing received on e- mail could not be responded by the assessee. Looking to the above facts and circumstances, we consider it appropriate to restore the case to the file of the ld. CIT(A) for deciding afresh on merit as contemplated u/s 250(6) of the Act. Needless to say that due opportunity of hearing be provided to the assessee. Therefore, the appeal of the assessee is allowed for statistical purposes. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 19.03.2025. Sd/- Sd/- (SANDEEP SINGH KARHAIL) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated:19.03.2025 Biswajit, Sr. P.S. Copy to: 1. The Appellant: 2. The Respondent: 3. The CIT, 4. The DR //True Copy// [ By Order Assistant Registrar ITAT, Mumbai Benches, Mumbai "