TMI Blog2022 (7) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) and hence in any case the appellate order passed by CIT(A) is not sustainable in the eyes of law. The assessee is also equally responsible for its woes, as the assessee has not appeared before Learned CIT(A) despite as many as seven opportunity of hearings being granted to the assessee by CIT(A). Even before Learned A.O. there was no proper compliances made by the assessee. D.R. has fairly submitted before us that the matter can be restored to the file of A.O. for fresh adjudication on merits in accordance with law, after referring the matter by AO to DVO in set aside remand proceedings for valuing the property purchased by the assessee, so that correct and proper assessment can be made. We are of the considered view that the matter can be restored to the file of A.O. for fresh determination of the issue on merits in accordance with law, after referring the matter to DVO by AO in set aside remand proceedings, for submission of valuation report by DVO of the property purchased by the assessee, and accordingly based on the valuation report of DVO, the differential amount between the purchase price and value as determined by the DVO can be brought to tax by AO in set aside re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond the time prescribed u/s 253(3) of the 1961 Act. The ld. Counsel submitted that the assessee suddenly fell down from roof of his house and he suffered from severe pain and was admitted to hospital, which was the main reason for delay in filing of the appeal. The assessee has enclosed a Certificate from Dr. Piyush Kr. Singh dated 15.12.2019 to support that assessee fell down from the roof and was not in a position to file the appeal in time. The condonation application along with Doctor Certificate is placed on record in file. 4. The Learned Sr. D.R. on the other hand, opposed the application of the assessee for condonation of delay. 5. After hearing both the sides, we are of the considered view that assessee has shown sufficient cause for delay in filing an appeal before the Tribunal , and in view of this we in exercise of powers u/s 253(5) of the 1961 Act condone the delay of 34 days in filing this appeal late beyond the time prescribed u/s 253(3) of the 1961 Act , and we proceed to decide the appeal on merits in accordance with law. It is well settled that if technicalities are pitted against justice, Courts will lean towards advancement of justice, unless malafide is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee at the very outset submitted that the assessee has purchased immovable property for a consideration of Rs.10 lakhs, which was registered on 13.12.2013. It was submitted that the land in question was not having approach road and the value was much lower than the stamp duty value which was Rs.63,79,000/-. The Learned Counsel for the assessee drew the attention of the Bench to the copy of sale deed which was enclosed in the paper book filed by the assessee, at pages 1 to 27. The Learned Counsel for the Assessee drew our attention to the assessment order passed by A.O. and also to the appellate order passed by Learned CIT(A), and submitted that additions have been made by A.O. by invoking provisions of Section 56(2)(vii)(b) of the 1961 Act. It was submitted that Learned A.O. did not refer the matter to DVO before bringing to tax difference between the stamp duty valuation and the purchase price of the immovable property. The Learned Counsel for the assessee submitted that Learned CIT(A) has passed an ex-parte order without discussing the issue on merits which is an infringement of Section 250(6) of 1961 Act. The Learned Counsel for the assessee, therefore, prayed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR. The statutory notices u/s 143(2) and 142(1) of the 1961 Act were issued by AO to the assessee, and there is no dispute so far issuance of these notices or service of these notices are concerned. We have observed that the assessee has purchased an immovable property for a consideration of Rs.10 lakhs, which was registered on 13.12.2013 in the name of the assessee, copy of the sale deed is enclosed by assessee in paper book filed with the Tribunal (which is placed on record in file), and the value as per stamp duty authorities was Rs.63,79,000/-, and the AO brought to tax the differential value of Rs.53,79,000/- by making addition in the hands of the assessee, by invoking provisions of Section 56(2)(vii)(b) the 1961 Act. The assessee during the assessment proceedings has raised a claim that it is in the business of real estate and this property was purchased as stock in trade, but, no such evidence was brought on record by the assessee, and the AO rejected such contentions raised by the assessee. This plea is now abundant by Learned Counsel for the assessee and prayers are made before the Bench that while invoking the provisions of Section 56(2)(vii)(b) of the 1961 Act, matter sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving him an option to follow the course provided by law. We have further observed that the Learned CIT(A) has not decided appeal on merits, but, has dismissed the appeal in limine without discussing the issue on merits, which is an infringement of Section 250(6) of the 1961 Act, and hence in any case the appellate order passed by ld. CIT(A) is not sustainable in the eyes of law. The assessee is also equally responsible for its woes, as the assessee has not appeared before Learned CIT(A) despite as many as seven opportunity of hearings being granted to the assessee by Learned CIT(A). Even before Learned A.O. there was no proper compliances made by the assessee. The Learned Sr. D.R. has fairly submitted before us that the matter can be restored to the file of A.O. for fresh adjudication on merits in accordance with law, after referring the matter by AO to DVO in set aside remand proceedings for valuing the property purchased by the assesse, so that correct and proper assessment can be made. Keeping in view the entire factual matrix of the case before us, we are of the considered view that the matter can be restored to the file of A.O. for fresh determination of the issue on merits ..... X X X X Extracts X X X X X X X X Extracts X X X X
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