2019 (5) TMI 682 - AT - Income Tax

Condonation of delay - delay on account of earlier advocate who kept the papers in a drawer and over looked - CIT(A) dismissed the appeal in limine - Reopening of the assessment u/s 147/148 - HELD THAT - In the present case it is noticed that the CIT(A) dismissed the appeal in limine and had not condoned the delay. He mentioned that there was delay of 740 days in filing the appeal, however, the claim of the assessee is that the delay is of 217 days. The assessee also filed an affidavit first time before this Bench of the Tribunal which was not available to the CIT(A). It is also claimed that the proper application was filed for condemnation of delay alongwith certificate issued by the then advocate before the CIT(A) which has not been appreciated in right perspective. Therefore, considering the totality of facts, deem it appropriate to set aside this case back to the file of the CIT(A) to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

Issues:
1. Dismissal of appeal by CIT(A) due to delay in filing.
2. Reopening of assessment under sections 147/148 of IT Act.
3. Application of section 50C of Income Tax Act.
4. Calculation of income as Capital Gain.

Issue 1: Dismissal of appeal by CIT(A) due to delay in filing:

The assessee's appeal was dismissed by the CIT(A) due to a delay of 740 days in filing the appeal, while the assessee claimed the delay was only 217 days. The assessee contended that the delay was due to the negligence of the advocate who failed to submit the appeal on time. The Ld. CIT(A) rejected the condonation delay petition, stating there was no genuine cause for the delay. The assessee argued that the rejection was arbitrary and against the principles of natural justice. The Ld. counsel for the assessee emphasized that the delay should have been condoned, as it was caused by the advocate's mistake and not due to the assessee's ignorance. The Tribunal set aside the case back to the file of the Ld. CIT(A) for fresh adjudication, considering the affidavit filed by the assessee and the application for condonation of delay.

Issue 2: Reopening of assessment under sections 147/148 of IT Act:

The Assessing Officer initiated the reassessment under sections 147/148 of the IT Act as the assessee had taxable income from capital gains but had not filed the return of income. The AO observed that the assessee sold an immovable property and framed the assessment at an income of ?5,58,910 after providing the benefit of cost indexation. The assessee challenged this reassessment, leading to the appeal before the CIT(A).

Issue 3: Application of section 50C of Income Tax Act:

The assessee argued that the provisions of section 50C of the Income Tax Act were not applicable to the case as the land in question was leasehold land. The assessee contended that on leasehold land, section 50C was not applicable based on a previous order of the Tribunal. This issue was raised to challenge the calculation of income as Capital Gain by the Income Tax Officer and confirmed by the CIT(A).

Issue 4: Calculation of income as Capital Gain:

The Income Tax Officer treated the income as Capital Gain, which was contested by the assessee. The assessee claimed that since the consideration was received earlier and possession was given in 1999, Capital Gain tax should not apply. The CIT(A) confirmed the Income Tax Officer's decision, leading to the appeal before the Tribunal.

In conclusion, the Tribunal set aside the case back to the file of the Ld. CIT(A) for re-adjudication regarding the dismissal of the appeal due to delay in filing. The issues of reopening assessment under sections 147/148 of IT Act, application of section 50C of Income Tax Act, and calculation of income as Capital Gain were also discussed during the proceedings. The Tribunal directed a fresh adjudication in accordance with the law, providing the assessee with a reasonable opportunity to present their case.

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