TMI Blog2014 (6) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - ITA No.95/PNJ/2012 - - - Dated:- 9-5-2014 - P K Bansal And D T Garasia, JJ. For the Appellant : Shri S R Kokate, Tax Consultant For the Respondent : S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tgager 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 Vinay Nandlal Kothari has filed the writ petition before the Karnataka High Court and it was withdrawn, thereafter, matter went to the Supreme Court and the Supreme Court in his order has dismissed the appeal.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain humbly pray the ITAT to condone the delay and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., Holder Sakhalchand Chunilal Shah, Son of Chunilal, Aged about 53 years. (By Sri K.S.Ramabhadran and Sri K.N.S. Prasad for petitioner. AND: 1. The Inspecting Assistant Commissioner of Income-tax Acquisition Range, Dharwar. 2. The Inspecting Assistant Commissioner of Income-tax Acquisition Range, Bangalore. 3. The Union of India, Represented by its Secretary, Department of Revenue, Ministry of Finance, New Delhi. Respondents. (By Sri G. Sarangan, Special Standing Counsel for respondents) Moreover, we find that before Karnataka High Court, Mr. Nandalal Tejmal 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, Dhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as regards the compensation payable shall follow as and when the order becomes final. From this above order the assessee was advised that Mr. Nandalal Tejmal Kothari who is the father of Mr. Vinay Nandlal Kothari who is appellant before us was party to that proceeding. Now Mr. Nandalal Tejmal Kothari was died and his son wanted to pursue the appeal before Income Tax Appellate Tribunal. On the ground that his father was unable to file the appeal before Tribunal, therefore, he has filed this appeal before us. Looking to this above facts we are of the view that the assessee has shown the reason for condonation of delay but we find that the matter is already settled by Apex Court. Therefore, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case, the delay upto 3 years was unreasonable-CWT was required to prefer the cause of justice by taking up the revision petitions on merits - Impugned orders quashed and set aside and matter remanded to CWT for deciding the revision petitions for asst Yrs. 1997-98 to 2000-0 1 on merits. In this case the delay is only for three years and it was condoned but in the instant case the facts are different. 4. AREVA T INDIA LTD Vs. JOINT COMMISSIONER OF INCOME TAX 287 ITR 555 (MAD): Condonation of delay- Reasonable cause- In exercising discretion under s.5 of limitation Act, the court should adopt a pragmatic approach- In construing the expression sufficient 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 7. NEW INDIA INSURANCE COMPANY Vs SMT SHANTI MISRA AIR 1976 SC 237: Hon'ble Supreme Court held that discretion given by section S should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. 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. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood cause. Rules of limitations are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to destroy tactic but seek their remedy for the redress of the legal injury so suffered. The law of limitation is thus founded on the public policy. 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. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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