TMI Blog2005 (11) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... 979. In 1989, When the bank dues exceeded Rs. 50 lakhs, the bank obtained a decree for auction sale of Pathan's property. To avert this situation, one Shri Janardhana Rao - one among the co-owners approached all other co-owners and secretly obtained individual consent letters to dispose each one's share in the property. The assessee also gave consent letter to transfer his share for a consideration of Rs. 2 lakhs, without mutually knowing about the consent letter. As nothing happened for a long period of 21 months, the co-owners were forced to effect a total partition of the property among them fixing the value of the property at Rs. 3 lakhs and were forced to transfer their share of properties in favour of the solvent co-owner Shri Janardhana Rao. The matter of consent letter was kept as a secret without disclosing it among the co-owners. The partition was registered and the payment was made then and there in the presence of the Sub-Registrar, before signing the document. The assessee received only a sum of Rs. 90,000 as his 6/20 share in the property. Afterwards, during the course of a search in the residence of Shri Janardhana Rao, the consent letters were seized by the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... original order raising a demand of Rs. 72,161, the appellant has filed this particular appeal after delay of 751 days against the original order passed under section 143(3). Here, it is important to mention that in the original order passed under section 143(3) on 18-2-2002, the Assessing Officer computed the capital gain on sale of property after inclusion of Rs. 2 lakhs in the sale proceeds and giving cost of indexation under section 48(2) at Rs. 1,88,055. Later on, the Assessing Officer found that the cost of indexation under section 48(2) was wrongly allowed while computing the capital gain as the provisions of cost inflation index under section 48(2) was brought on the Statute only from the assessment year 1993-94, which is not applicable for the instant assessment year, i.e., 1992-93. In view of that the cost of indexation was disallowed by the Assessing Officer in the order passed under section 154 dated 9-3-2004. This is the factual background of the case under which the appellant has chosen to file a belated appeal after delay of 751 days. Now, the question arises whether the delay of 751 days is to be condonable or not. It is also relevant to see as to whether the delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 773 (P H) dismissed the appeal by the IT Department against the Tribunal refusing the condonation of delay of five days in departmental appeal. In view of the foregoing discussion, I hold that the inordinate delay in this particular case cannot be condoned. Hence, as a result, the maintainability of the appeal is not allowed." Thus the first appellate authority dismissed the appeal for the delayed filing and did not deal with the merits of the case though raised by the assessee in the grounds of appeal. Aggrieved by this order of the CIT(A), the assessee is on second appeal before the Tribunal. 3. With regard to the refusal to condone the delay of 751 days by the CIT(A), the following grounds are raised: "1. The CIT(A) ought to have condoned the delay of 751 days occurred in filing the appeal before him, in the circumstances of the case. 2. The order passed by the appellate authority is illegal and unsustainable. 3. The first appellate authority failed to note that in the assessment order passed under section 143(3) by the Assessing Officer on 18-2-2002 there was no actual tax liability accrued to the appellant. 4. The appellate authority ought not to have expected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [2002] 257 ITR 773 and the decision of the Bombay High Court by filing an extract from "taxindiaonline" (kept on record) wherein it was held that "Commissioner of Central Excise had no jurisdiction to condone the delay beyond 60 days in filing the appeal". 6. I have heard the rival submissions and considered the facts and materials on record. The decisions relied upon by the learned DR, in my opinion, are not applicable to the facts of the present case on hand. In the case on hand when the original order under section 143(3) was passed, there was no tax liability on the assessee and hence the assessee did not file any appeal. When the same was rectified under section 154, the tax burden of Rs. 72,161 was put on the assessee and hence the assessee was forced to file an appeal not only against the order passed under section 154 but also to challenge the original order passed under section 143(3) wherein an adverse finding on the assessee was given while adding Rs. 2 lakhs to the sale proceeds. The observation of the first appellate authority that there was some mala fide intention on the part of the assessee by keeping silent against the original order is not borne out of any mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to me there was bona fide reasons for the assessee for the delay in filing the appeal and as such, the CIT(A) ought to have condoned the delay and decided the case on merits. Hence, I direct the CIT(A) to condone the delay and admit the appeal to decide the issues on merits, after giving effective opportunity of hearing to the assessee. The assessee is also directed to co-operate with the first appellate authority without seeking adjournment on flimsy grounds/reasons. Thus, this appeal of the assessee is partly allowed for statistical purposes. 8. Now let me turn to the appeal in ITA No. 504/Coch./2005. The effective grounds of appeal of the assessee read as under: "2. The order passed by the CIT(A) is opposed to law, facts and circumstances of the case and hence unsustainable. 3. The CIT(A) ought to have found that the assessment made under section 143(3) merged with the order passed under section 154 and that the entire grounds raised by the appellant regarding the computation of capital gain were in order. 4. The CIT(A) failed to note that the rectification carried out by the Assessing Officer was beyond the scope of section 154 of the Income-tax Act, 1961 and henc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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