AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 723
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.... the impugned order on 26.10.2016, which was received by the assessee on 28.11.2016. Accordingly, the appeal was to be filed on/before 27.01.2017 however, the same has been filed on 28.05.2018. Thus, a delay of 486 days has occurred. In this connection, it was submitted the assessee is an illiterate farmer, who sold his ancestral agriculture land (being ½ share) through 2 registered sale deeds of Rs. 40 lakh each, totaling to Rs. 80,00,000/-. The Sub-Registrar estimated the sale consideration valued at Rs. 85,75,875/- of each sale, totaling to Rs. 1,71,51,750/-. Thereafter, the AO issued notice u/s 148 and completed the assessment on 11.09.2015 u/s 144/147 computing long term capital gains of Rs. 85,75,874/-. That against the assessment order dated 11.09.2015, the assessee filed first appeal before the ld. CIT(A) which was registered as Appeal No. 211/15-16 dated 26.10.2016 in which ld. CIT(A) confirmed the action of the AO and dismissed the appeal. 5. It was further submitted that against the order of the ld. CIT(A), the Counsel of the assessee, instead of filling second appeal before the Tribunal, has filed an application for revision u/s 264 of the I.T. Act, 1961 on 16.....
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....imary duty of the Courts is to dispense justice and not to dismiss appeals on mere technicalities. Further, reliance was placed on the decisions in case of United Christmas Celebration Committee Charitable Trust vs. ITO (2017) 249 Taxman 372 (Mad), Hosanna Ministries vs. ITO, (2017) 152 DTR (Mad) 8, Mukesh Jesangbhai Patel vs. ITO (2013) 29 taxmann.com 389 (Guj) and Vijay Vishin Meghani vs. DCIT (2017) 398 ITR 250 (Bom). It was accordingly submitted that the prayer of the assessee for condonation of the delay may be accepted and appeal may be admitted for adjudication on merits. 9. Per contra, the ld DR submitted that there is an inordinate delay of 486 days and such delay should not be condoned and that a distinction ought to be drawn between a case where the delay in inordinate, as it is in the case on hand i.e. of 486 days and in cases where the delay is of a few days. The ld DR further contended that the explanation put forward by the assessee for the delay does not amount to reasonable and sufficient cause which were beyond his control and the assessee has certainly not proved beyond doubt that he was diligent and not guilty of negligence in the matter. The ld DR accordingly ....
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....guided by another development which we have noticed from perusal of the records and also the affidavit submitted by the Counsel. We find that there was recovery pressure from the Department and there was an attachment notice dated 15.01.2018 issued by the Tax Recovery officer attaching the immoveable property of the assessee and in order to safeguard his interest, basis the advice of his Counsel again, the assessee moved the revision application before the ld Pr CIT under whose jurisdiction the TRO functions. We therefore find that there is a close connection between the attachment proceedings which necessarily arise out of the present quantum proceedings and therefore, to safeguard his interest, the assessee has filed the present appeal. We therefore find that the assessee has all along relied on the advice and assistance from his local Counsel. At the same time, we find that where the assessee being of a rural background and being illiterate and unaware of the complexities of law and thus wholly dependent on his Counsel, who is a practicing Chartered Accountant and who carries his brief to represent his tax matter before the tax and appellate authorities, the Counsel needs to be ....
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.... resorting to delay. In fact, he runs a serious risk. In the instant case, applying the same principles, we find that the assessee has all along acted diligently in safeguarding his legal rights and availing the remedies available to him and has acted and taken action basis the advice and assistance sought from his legal Counsels. He was initially advised to file revision petition before the ld Pr CIT, however, due to subsequent developments wherein the assessee runs a serious risk of attachment, he was advised to file the present appeal, we find that there is no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal and he does not stand to benefit by resorting to such delay. 12. In case of United Christmas Celebration Committee Charitable Trust vs. ITO (Supra), the Hon'ble Madras High Court has condoned the delay of 1631 days in filing the appeal before the Tribunal against the order of ld. CIT(A) refusing registration u/s 12AA of the Act. In that case, the Hon'ble High Court has held that in dealing with the matter, not only the period of delay has to be taken into account but also the quality of the explanation, the legal assistance....
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....he delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss." 15. Further, we refer to the decision the Hon'ble Bombay High Court in case of Vijay Vishin Meghani vs. DCIT (Supra) wherein it has referred to the decision in case of Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi & Ors. AIR 1979 SC 1666 wherein the Hon'ble Supreme Court has held that a legal advice tendered by a professional and the litigant acting upon it one way or the other could be a sufficient cause to seek condonation of delay and coupled with the other circumstances and factors for applying liberal principles and then said delay can be condoned. Eventually, an overall view in the larger interest of justice has to be taken. None should be deprived of an adjudication on merits ....
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...., for want of jurisdiction and various other reasons and hence the same kindly be deleted. 2. The very action taken u/s 144 r/w 148 is bad in law without jurisdiction and being void ab-initio, the same kindly be quashed. Consequently the impugned assessment framed u/s 144/147 dated 11.09.2015 also kindly be quashed. 3.1 Rs. 85,75,875/-: The ld. CIT(A) erred in law as well as on the facts of the case in confirming the addition of Rs. 85,75,875/- as made by the AO by applying DLC rate u/s 50C of the Act as adopted by the Sub Registrar as against Sale Consideration of Rs. 40,00,000/- only received by the assessee. The addition so made by the AO and confirmed by the ld. CIT(A) is totally contrary to the provisions of law and facts on the record and hence, the resultant addition kindly be deleted in full. 3.2 The ld. CIT(A) further erred in law as well as on the facts of the case in denying the claim of expenses of Rs. 5,00,000/- incurred by the assessee to get the land free from litigation. The expenses incurred but denied by the ld. CIT(A), being totally contrary to the provisions of law and facts on the record and hence, the expenses so claimed kindly be allowed in full. 3.....
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....A/R appeared & filed application for admission of additional evidence u/r 46A (1) (c). It is seen that the order is passed u/s 144/147. The medical condition of the assesse as claimed provided a sufficient cause preventing him to appear before the A.O. In view of the above, the application for admittance of additional evidence u/r 46A was admitted and the documents enclosed to be sent to the A.O for necessary verification & report on the same." Thereafter, the CIT(A) called for the remand report reproduced at pg. 5 to 7 of his order but rejected such objection and admitted the additional evidences in the following words: "While admitting the additional evidence filed u/r 46A(1) in view of the stipulated conditions therein and following the principles of natural justice, I am of the opinion that it is clear from the various documents and submissions, report etc. that though the asseesse was intermittently being treated for illness but as per his own admission, he acknowledge the receipt of notices from the Income Tax department. He also has a son who is stated to be working somewhere." 21. It was submitted by the ld AR that the approach of the ld. CIT(A) is contradictory in as m....
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....equate opportunity of being heard and to decide all the issues judiciously. 24. Per contra, the ld DR submitted that adequate opportunity was provided by the Assessing officer, however, the assessee had choosen to ignore those notices for reason best known to him and now, has raised the plea regarding lack of adequate opportunity which cannot be allowed. It was further submitted that there is no contradiction in the findings of the ld CIT(A). It was submitted that the ld CIT(A) has upheld the order passed by the AO u/s 144 r/w 147 given that the assessee having received the notices, had chosen not to file any return of income or any submissions during the assessment proceedings. Further, taking into consideration the ground of medical conditions of the assessee, the application seeking permission to submit additional evidence u/s 46A was admitted and thereafter, the ld CIT(A) has infact given a finding on the additional evidence so submitted by the assessee in terms of investment made in the name of his wife. It was accordingly submitted that there is no contradiction in the findings of the ld CIT(A) and the contention so advanced by the assessee should be rejected. The ld DR acco....
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....otices were not served on him. Therefore, as far as passing of the order u/s 144 ex-parte qua the assessee is concerned, we donot see any infirmity in the action of the AO in view of non-filing of the return of income and noncompliance to various notices issued during the course of assessment proceedings. 27. At the same time, where the AO decide to pass the best judgment order u/s 144 and where such order is confirmed by the ld CIT(A), the order so passed must have a reasonable nexus to the available material and the facts and the circumstance of the case. In this regard, we refer to the contention of the assessee regarding non-application of mind by the AO while passing the assessment order where the value as determined by the stamp duty authority has been brought to tax instead of actual sale consideration and that too, without even allowing deduction for cost of acquisition and cost of improvement. In this regard, we refer to the substantive findings of the AO which reads as under: 28. On perusal of the aforesaid findings of the AO, we find that the AO has brought to tax the value as determined by the Sub-Registrar, Stamps in respect of one of the transactions of sale of land....
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.... there is no dispute in this regard. However, we again find that there is no finding given by the ld CIT(A) regarding the cost of acquisition and the contention of the assessee that being an ancestral land acquired prior to 1.4.1981, the estimated cost as on 1.04.1981 may be allowed to him has not been disposed off. Similar, no finding has been given regarding development expenditure and amount given to assessee's sister to avoid litigation which the assessee claims to be a cost in connection with transfer. Further, the assessee has contended that under compelling circumstances, he has sold the ancestral agriculture land and in this regard, the ld CIT(A) has held that the land apparently is an urban land and the valuation adopted by the stamp duty authority appears to be reasonable and justified, however, the basis of such reasonableness is not borne out of records. To our mind, the issue is regarding determination of fair market value of land which is claimed to be sold under compelling circumstances by the assessee as per declared sale consideration and where the Revenue intends substituting stamp duty value for actual sale consideration, the right course of action would have be....