RAKESHKUMAR PATRIA,MUMBAI V. INCOME TAX OFFICER-28(2)(1), MUMBAI

ITA 2987/MUM/2024

AI Insights

The case involves two appeals by Rakesh Kumar Patria against the orders of the Income Tax Officer (ITO) and the Commissioner of Income Tax (Appeals) regarding the levy of capital gains tax and penalties for the Assessment Year 2012-13. The appellant, an NRI, did not file his income tax returns, leading the AO to issue a notice under section 148 of the Income Tax Act, which went unanswered. The AO completed the assessment ex-parte under section 144, resulting in a demand for short-term capital gains tax based on the sale of immovable property. The appellant's subsequent appeal to the CIT(A) was dismissed due to a significant delay, which the CIT(A) found unjustifiable. The appellant then approached the ITAT, which decided to condone the delay and remand the case back to the AO for a fresh assessment, providing the appellant an opportunity to present his case.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 37902 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-10-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 29-05-2024
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRISUNNY KACHHWAHA
• Assessee Lawyers: ROSHAN OCHANI
• Keywords: Capital Gains
• Section: 148; 144

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL Mumbai “D” Bench, Mumbai. Before Shri Anikesh Banerjee (JM) & Shri Omkareshwar Chidara (AM) I.T.A. No. 2986/Mum/2024 (A.Y. 2012-13) I.T.A. No. 2987/Mum/2024 (A.Y. 2012-13) Rakesh Kumar Patria Through POA Holder C/o. Mr. Ranu Khurrana Bhoomi Gardenia-2 Flat No. 10, Raod Pali Kalmboli, Sector-20 Maharashtra-400 078. PAN : ALTPP5001A Vs. ITO 28(2)(1) Tower No. 6 Vashi Railway Station Commercial Complex, Vashi Navi Mumbai Mah. 400 703. (Appellant) (Respondent) Assessee by Shri Roshan Ochani Department by ShriSunny Kachhwaha Date of Hearing 07.10.2024 Date of Pronouncement 11.11.2024 O R D E R Per Omkareshwar Chidara (AM) :- Both the above cited appeals are clubbed and common order is being passed as the issue is same and appellant is same person. ITA No. 2987/Mum/2024 2. As the appellant has not filed the return of income, the learned Assessing Officer (AO for short) issued notice u/s. 148 of the Income Tax Act (the Act for short) to find out the leviability of capital gain on the sale of immovable property amounting to Rs. 86 lakhs as mentioned in the assessment order. Two opportunities were given and the appellant was not traceable nor there is any compliance for the notices sent. Hence, the Ld. AO completed the assessment u/s. 144 of the Act. As per the AIR data received, the Ld. AO has computed short term Rakesh Kumar Patria 2 capital gains of the immovable property and raised the demand. As mentioned above, since the appellant has not complied with the notices, the Ld. AO has completed the assessment ex-parte u/s. 144 of the Act. 3. Aggrieved by the assessment order, the appellant filed an appeal before learned Commissioner of Income Tax (Appeals) [the Ld. CIT(A) for short] with a delay of 564 days. As the Ld. CIT(A) was not convinced with the reasons given in filing the appeal with delay, the Ld. CIT(A) dismissed the appeal of the appellant by holding that the delay of 564 days is not justifiable and hence not condoned. He that the appeal of the appellant is barred by limitation and hence dismissed the appeal. 4. The appellant filed an appeal before the ITAT stating that he is an NRI for the last twenty years and he does not have family in India. Hence, he does not know about the income tax proceedings which were completed ex-parte and he filed an appeal with delay and accordingly the appellant filed an affidavit and requested the ITAT to condone the delay and admit the appeal. 5. During the appeal proceedings before the ITAT, the Ld. AR of the appellant pleaded that he may be given one more opportunity to explain levy of capital gains because he already paid relevant capital gain tax. Ld DR relied on the orders of the Ld. AO and the Ld. CIT(A). 6. After hearing both sides, it is decided to condone the delay and remand the matter back to the file of the Ld. AO. The Ld. AO is directed to give an opportunity to the appellant to explain levy of capital gains tax. The appeal of the appellant is allowed for statistical purposes. ITA No. 2986/Mum/2024 7. Facts in this appeal are same as in ITA No. 2987/Mum/2024. In this appeal, the appellant contested levy of penalty on capital gain tax mentioned in the assessment order. Facts being same, Ld. AR of the appellant has pleaded that he Rakesh Kumar Patria 3 may be given an opportunity to explain levy of capital gain tax itself and hence penalty levied by the Department may be cancelled. 8. Ld. DR opposed the plea of Ld. AR of the appellant. As mentioned above, the Bench has decided to condone the delay and remand the matter back to the Ld. AO with regard to main issue itself, consequent levy of penalty is also remitted back to the Ld. AO. The appeal of the appellant is allowed for statistical purposes. Order pronounced in the open court on 11th November, 2024. Sd/- Sd/- (Anikesh Banerjee) (Omkareshwar Chidara) Judicial Member Accountant Member Mumbai : 11.11.2024 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai. 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai "