9911796707
TMI Blog2014 (6) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... would be liable to capital gains tax - any understatement of real consideration in the transfer document would definitely facilitate the transferor to reduce or evade his liability to capital gains tax in respect of the transfer - In the case of the transferee also the rebuttable presumption that the understatement of the real consideration in the transfer document had been done with a view to facilitate him to evade taxes in the manner laid down in Section 269C(1)(b) of the Income Tax Act, 1961 has not been rebutted with any evidence leave alone convincing evidence. The mere assertion that the price paid is what has been shown in the sale document cannot be accepted in the light of the special Rules of Evidence introduced under Chapter XXA of the Income tax Act, 1961 through Section 269C(2)(b) unless the contrary is shown – the assertion is only a self-serving statement without any independent evidence - all the requirements of Section 269F(6) of the Act, 1961 are satisfied - the application for condonation of delay is dismissed and assessee’s appeal is dismissed – Decided against Assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... r could not comply with the order of the Court and entire amount of Rs. 30,000/- which did not paid and mortgager property was auctioned by the Court and Mr. Ramrao Bindurao Bagalkotkar was purchased the property for Rs.39,539/- on 03/02/1973. Thereafter, the property re-acquired by family members and Smt. Gendabai Kothari, who has held to acquire this property. Mr. Vinay Nandlal Kothari has filed the writ petition before the Karnataka High Court and it was withdrawn, thereafter, matter went to the Supreme Court and the Supreme Court in his order has dismissed the appeal. The assessee has filed this appeal against the order of acquisition u/s. 269F(6). 3.1. The assessee has also moved an application for condonation of delay under the provisions of Section 269F of the I.T. Act. The order U/s. 269F(6) was passed by Inspecting Assistant Commissioner of Income Tax acquisition range Dharwad on 23.03.1976. Then one Mr. N.V. Shivangi Chartered Accountant appeared before the competent authority in connection with above proceedings. When the proceedings were going on, assessee's father late Shri Nandlal Khothari was of the age of just 22 years. My grandfather and his 8 brothers were not mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dropped, if the apparent consideration of the property is Rs. 5 lakh or less. In the case of appellant the apparent consideration is only Rs. 45,000. The High Court rejected our contention on the ground that proceedings have become final. Order of the High Court is found in the paper book on pages 86 - 93. Subsequently this order has been upheld by the Supreme Court by dismissing our appeal and the order of the Supreme Court is found on page no. 94 of the paper book. I am enclosing herewith grounds raised before the High Court and Supreme Court for the kind perusal of the Hon'ble ITAT. It is very clear that the merit of the case whether acquisition proceedings U/s 269 itself were justified was never challenged before any Courts. As we have been fighting before the various courts right from 1976 till 2012, the appellant never ignored or neglected to pursue the matter. But unfortunately the appellant went on fighting on wrong footings without understanding that the right thing to do was filling an appeal U/s 269 G before the ITAT. There is no taint of malafide or element of recklessness or ruse on our part. The appellant therefore humbly pray before the Hon'ble ITAT to condon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d admit the appeal for hearing on merits." 5. The learned DR objected to it. 6. We have heard the rival contention of both the parties. Looking to the facts and circumstances of the case, we find that in the instant case the property in question is subject to acquisition u/s. 269D(1) of the Income Tax Act and Competent Authority has ultimately passed an order of acquisition on 23.03.1976 in accordance with Section 269F(6) of the Act. The said order of acquisition was not challenged either the 1st petitioner herein or the other petitioners as on today. Thus, the said order has attended the finality in so far as the tenants are concerned. The tenants were occupying the said premises and has challenged the order of acquisition before Income Tax Appellate Tribunal but the Tribunal has rejected the appeal filed by the tenant on the ground that same is not maintainable. Thereafter, the matter has travelled up to Supreme Court and Supreme Court has dismissed the appeal. Before Supreme Court Mr. Nandalal Tejmal Kothari was party to it and Mr. Nandlal Tejmal Kothari is transferee and now the assessee before us is the son of Mr. Nandlal Tejmal Kothari. After hearing all the parties th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kothari and Ors. were party to it which is on page 86 of the paper book. We find from this documentary evidence that once Hon'ble Karnataka High Court has held that the proceeding taken place u/s.269F(6) is legal and it has been decided on 23.3.1976, that decision became final. Looking to the above facts, we find that interestingly the assessee has produced the order of Acquisition Officer on page 46 of his paper book wherein the Inspecting Assistant Commissioner of Income Tax, Acquisition Range, Dharwar, the Competent Authority has passed the order holding as under: " From the foregoing, it will be clear that the fair market value of the immovable property under consideration would be not less than Rs. 1,40,000 as against the apparent consideration of only Rs. 45,000. Thus it would be clear that the fair market value of the immovable property would exceed the apparent consideration at least by 25% of such apparent consideration, if not more. This shall be conclusive proof that the real consideration agreed to between the parties had not been truly stated in the instrument of transfer. The immovable property under consideration is a capital asset within the meaning of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the view there is no reason for condone of delay to file the appeal before Tribunal against the order passed u/s.269F(6) by Inspecting Assistant Commissioner of Income Tax, Range Dharwar (Competent Authority) on 23.03.1976. We find that the assessee has relied upon the various decision, wherein the assessee has not filed the appeal but here in this case assessee has already exhausted all the remedies, therefore, in our opinion, there is no reason for condonation of delay. During the course of hearing the learned AR has relied upon the various decisions which read as under: "1. COLLECTOR, LAND ACQUISITION Vs MST KATIJI AND ORS 167 ITR 471(SC): Appeal (Tribunal)-Condonation of delay-"Sufficient cause" = "Sufficient cause" for the purpose of condonation of delay should be interpreted with a view to do even-handed justice on merits in preference to approach which scuttles a decision on merits- The power to condone delay is conferred with a view to enable the courts to do substantial justice to litigants by disposing of the case on merits- There is no warrant for according a step motherly treatment when the "State" is the applicant prayin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient cause" the principle of advancing substantial justice is of prime importance -Assessee could not prefer appeal within time on account of advice illegally given by its counsel- Director of the assessee- company has sworn to an affidavit in this regard- Tribunal simply refused to accept the affidavit without giving a finding as to whether the assessee has shown sufficient cause for the delay- Order of the Tribunal is set aside and the matter is remitted back to the Tribunal for disposal of the same on merits. In the instant case the assessee could not prefer appeal within time on account of advice allegedly given by its Advocate, but it has already been informed to the original owner of the property Nandalal Tejmal Kothari in the order under Section 269F(6) that the appeal lies against the order to the ITAT, Bangalore Bench and same has to be filed within the 45 days from the date of the order. The assessee was specifically advised in the order itself, therefore, it will not be helpful to the assessee. 5. SUBHASH MALIK Vs. COMMISSIONER OF INCOME TAX 325 ITR 243: Condonation of delay- Reasonable cause- Appeal under s.246A was dismissed on 25th sep., 2012 by CIT(A)-Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property Nandalal Tejmal Kothari in the order under Section 269F(6) that the appeal lies against the order to the ITAT, Bangalore Bench and same has to be filed within the 45 days from the date of the order. The assessee was specifically advised in the order itself, therefore, it will not be helpful to the assessee. 8. SHANKUNTALA DEVI JAIN Vs KUNTAL KUMARI AIR 1969 SC 575: The Hon'ble Supreme court held that unless want of bonafides of such inaction or negligence as would deprive a party of the protection of section 5 is proved, the application must not be thrown out or any delay cannot be refused to condoned. In the instant case the assessee could not prefer appeal within time on account of advice allegedly given by its Advocate, but it has already been informed to the original owner of the property Nandalal Tejmal Kothari in the order under Section 269F(6) that the appeal lies against the order to the ITAT, Bangalore Bench and same has to be filed within the 45 days from the date of the order. The assessee was specifically advised in the order itself, therefore, it will not be helpful to the assessee. 9. CIT Vs SITA WORLD TRAVELS (INDIA) LTD 5 TAX CORP (DT) 48934 (DE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself, therefore, it will not be helpful to the assessee. 11. SHRIMATI PRABHA Vs. RAM PRAKASH KALRA (SUPPL) SSC 339: The Supreme Court took the view that the court should not adopt any injustice oriented approach in rejecting the application for the condonation of delay. In the instant case the assessee could not prefer appeal within time on account of advice allegedly given by its Advocate, but it has already been informed to the original owner of the property Nandalal Tejmal Kothari in the order under Section 269F(6) that the appeal lies against the order to the ITAT, Bangalore Bench and same has to be filed within the 45 days from the date of the order. The assessee was specifically advised in the order itself, therefore, it will not be helpful to the assessee. 12. BRIJI SINGH Vs KANSHI RAM AIR 1917 PC 156: It was observed that true guide for a Court to exercise the discretion u/s S is whether the applicant is acted with reasonable diligence in prosecuting the appeal. In the instant case the assessee could not prefer appeal within time on account of advice allegedly given by its Advocate, but it has already been informed to the original owner of the property Nandalal Tej ..... X X X X Extracts X X X X X X X X Extracts X X X X
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