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TMI Blog2014 (1) TMI 1439X X X X Extracts X X X X X X X X Extracts X X X X ..... idual filed his return of income for assessment year 2006-07 declaring total income of Rs.6,27,99,405/- which inter-alia comprised of 'short term capital gain' and 'long term capital gain' on sale/purchase of shares & securities, etc. at Rs.4,73,30,889/- and Rs.1,53,11,448/- respectively. In the scrutiny assessment finalized under Section 143(3) of the Act dated 04.12.2008 the total income has been determined at the same figure which was returned. So, however, the 'capital gain' declared by the assessee on sale/purchase of shares & securities, etc. was treated as 'business income'. As a result the total tax payable was determined at Rs.3,19,30,835/-, inclusive of interest under Sections 234A, 234B & 234C of the Act of Rs.1,19,58,232/-. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s beyond the control of the assessee. 5. We have considered the reasons advanced by the assessee for the delay in filing of the present appeal and the same have also been detailed in the affidavit dated 17.08.2012, which is on record. The learned Departmental Representative opposed the prayer of the assessee for condonation of delay in filing of the present appeal yet no fault has been pointed out by him with regard to the bonafides of the reasons explained by the assessee for the delay in filing of the appeal. As the bonafides of the reasons advanced by the assessee for the delay are not assailed, we deem it fit and proper to condone the delay in filing of the present appeal. In coming to such conclusion, we have also borne-in-mind the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per the return stands paid and there is no violation of Section 249(4)(a) of the Act at present and thus the assessee would be satisfied if the order of the CIT(A) dated 04.11.20009 is set-aside and the appeal restored to his file for adjudication on merits of the controversy relating to the taxability of income from transactions on sale/purchase of shares & securities, etc. In support of his plea, reliance has been placed on the following decisions : (i) Hon'ble Karnataka High Court in the case of CIT-III vs. K. Satish Kumar Singh (2012) 209 TAXMAN 502 (Karnataka); (ii) Pune Bench of the Tribunal in the case of Mayfair Builders & Developers vs. DCIT, (2008) 114 ITD 147 (Pune); and, (iii) Hyderabad Bench of Tribunal in the case of Shamr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly covers the controversy. As per the Hon'ble High Court, after the dismissal of the appeal by the CIT(A) on account of a default under Section 249(4)(a) of the Act, if the assessee pays the admitted tax, the CIT(A) ought to recall the earlier order dismissing the appeal in-limine and to consider the appeal on merits. 10. Considering the judgement of the Hon'ble Karnataka High Court in the case of K. Satish Kumar Singh (supra), we deem it fit and proper to set-aside the impugned order of the CIT(A) with directions to consider the plea of the assessee of having paid the tax due on the returned income and upon his being satisfied that the requirement of Section 249(4)(a) of the Act has been complied with, he shall admit and dispose-off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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