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TMI Blog2020 (9) TMI 723X X X X Extracts X X X X X X X X Extracts X X X X ..... s hereby admitted for adjudication on merits. Reopening of assessment u/s 147 - HELD THAT:- No contentions were raised challenging the jurisdiction of the AO u/s 147 and hence, in absence of the same and considering the facts and circumstances of the case, we donot see any infirmity in the action of the AO in acquiring jurisdiction u/s 147 where the assessee has sold his agriculture land and which has not been reported to the tax department in absence of any return of income filed by the assessee. AO was in possession of tangible information that the assessee has sold his agriculture land and thus, basis such tangible information, where he forms an opinion that the income has escaped taxation, we donot see any infirmity in issue of notice u/s 148 and acquisition of jurisdiction u/s 147 by the Assessing officer - As far as first part of the ground of appeal is concerned, where the assessee has challenged the jurisdiction of the AO u/s 147, the same is hereby dismissed. Action of the AO in passing the order u/s 144 without providing adequate opportunity to the assessee and without due application of mind and the said action being confirmed by the ld CIT(A) - It is not th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stral 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. 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 been to refer the matter to the DVO, however, no such action was taken by the ld CIT(A). Regarding investment by way of purchase of agriculture land in the name of assessee s wife, we find that the ld CIT(A) has apparently not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apital gains of ₹ 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 16.01.2018 before the Pr. CIT-Kota, which was rejected as not maintainable. Thereafter, it is only in the month of May, 2018 when the assessee met the Senior Counsel at Jaipur, who suggested that the only proper course and remedy against the order of the ld. CIT(A), was to challenge the same before the Tribunal and the application u/s 264 was wrongly filed before the Pr. CIT. Realizing this mistake, immediate efforts were made to hand over documents to the ld. Counsel at Jaipur, who prepared the present appeal documents and the appeal was thereafter filed on 28.05.2018. 6. It was submitted that the assessee completely remained in good faith of his regular tax consultant upon whom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay 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 submitted that the petition for condonation of delay in filing the present appeal be rejected and the appeal being barred by limitation, the same should be dismissed. 10. We have heard the rival contentions and perused the material available on record. There is no dispute that there has been a delay in filing the present appeals and the period of delay as computed by the Registry comes to 489 days as against 486 days as submitted by the ld AR. There is also no dispute that under section 253(5) of the Act, the Tribunal may admit an appeal filed beyond the period of limitation where it is satisfied that there was sufficient cause on the part of the assessee for not pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, 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 vigilant and should guide the assessee on regular basis on the appropriate course of action to be taken before the appropriate appellate authority. No doubt, the assessee need to follow up on his matters, however, the onus is equally on the Counsel to direct and guide him property timely. There is an error of judgment on part of the Counsel, as we have noted above in terms of pursuing the matter before the different authority, which we can very well understand, however to say that the assessee s appeal papers were misplaced somewhere in his office and suddenly on receiving recovery pressure from the Department, one fine day the papers were discovered, as stated by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, if any, sought and rendered to the litigant, and the detriment that condonation of delay would cause to the opposing party. These are aspects, if, looked at, closely, will enable the Court to come to a conclusion as to whether the delay was intentional and/or deliberate. Accordingly, the Hon ble High Court held that even though the period of delay is large, it is inclined to condone the delay especially in the circumstances of the present case for the reason that if the assessee would succeed on merits, it could hardly be said that it would cause detriment to the Revenue in the matter involving grant of registration. 13. Further, we refer to the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 unless the Court of law or the Tribunal/Appellate finds that the litigant has deliberately and intentionally delayed filing of the appeal, that he is careless, negligent and his conduct is lacking in bona fides. The Hon ble High Court thereby condoned the delay of 2984 days in filing the appeals holding that the explanation placed on affidavit was not contested nor we find that from such explanation, can we arrived at the conclusion the assessee was at fault, he intentionally and deliberately delayed the matter and has no bona fide or reasonable explanation for the delay in filing the proceedings and the position is quite otherwise. 16. In li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ₹ 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. 3.3 The ld. CIT(A) further erred in law as well as on the facts of the case in denying the deduction u/s 54F of the Act of ₹ 11,50,920/- [₹ 3,12,280/-, ₹ 4,19,320/- and ₹ 4,19,320/-] as claimed by the assessee. The denial so made by the ld. CIT(A), being totally contrary to the provisions of law and facts of the case 3.4 The ld. CIT(A) further erred in law as well as on the facts of the case in denying the claim of expenses of ₹ 5,00,000/- incurred by the assessee for development of land. The expenses incurred but denied by the ld. CIT(A), being totally contrary to the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 much as on one hand he has admitted the additional evidences on the ground of medical illness but at the same time he confirmed the ex-parte order simply saying that son was there to take care and several opportunities were given. It is submitted that mere fact that the son is there does not mean that he would be attending all the hearings on behalf of the father and in this materialistic world one otherwise cannot expect much. It is a hard fact of life. He was not engaged for this purpose. Son doing own job and does not understand. On the other hand the brother of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving 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 accordingly supported the findings of the lower authorities. 25. We have heard the rival contentions and purused the material available on record. In this case, notice u/s 148 was issued on 7.04.2014 after recording reasons that the assessee has sold two pieces of agriculture land situated at gram Naya Nohra, Tehsil- Ladpura, kota for a consideration of ₹ 40 lacs each and which has been valued by the Sub- Registrar, Kota for stamp duty purposes at ₹ 85,75,875/- each. It was further stated in the reasons that since the assessee has not filed his re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance 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 entered into by the assessee with Shri Parmanand Bohra treating the same as full value of consideration and the value so determined has been treated as income from long term capital gains on sale of land. The reason as to why the AO has adopted the value as determined by the stamp duty authority instead of actual sale consideration is not discernable from the order. Presumably, where the AO had intended to invoke the provisions of section 50C, he was required to atleast issue a showcause to the assessee in this regard and given an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee 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 been to refer the matter to the DVO, however, no such action was taken by the ld CIT(A). Regarding investment by way of purchase of agriculture land in the name of assessee s wife, we find that the ld CIT(A) has apparently not considered the Hon ble Rajasthan High Court decision in case of Sh. Mahadev Balai vs. ITO (D.B. ITA No. 136/2017 others dated 07.11.2017) wherein in the context of section 54B, it was held that where the investment is made in the name of the wife, the assessee shall be eligible for claim of deduction u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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