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2016 (6) TMI 1112 - ITAT CHENNAI

2016 (6) TMI 1112 - ITAT CHENNAI - TMI - Levy of penalty u/s.271(1)(c) - Held that:- As the quantum appeal is still pending before the Commissioner of Income-tax(Appeals), the levy of penalty is also remitted back to the file of the Commissioner of Incometax( Appeals) for adjudicating the same after deciding the quantum addition before him. - Entitlement to exemption u/s 54 - Held that:- We hold that in the present case, the assessee inherited the property on 21.5.2002. The said property was .....

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capital gains by fixing the cost of asset as on 1.4.1981 and thereafter applying the cost of inflation index in terms of sec.49(1)(iii)(a) of the Act. Same view was taken in the case of CIT vs. Manjula J. Shah (2011 (10) TMI 406 - BOMBAY HIGH COURT ). Consequently, the assessee is entitled to exemption u/s.54 of the Act. Accordingly, this appeal of the assessee is allowed. - ITA Nos. 407 & 408/Mds/2015 & 582/Mds/2016 - Dated:- 6-6-2016 - SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJ .....

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for the assessment year 2009-10 and ITA No.582/Mds/2016 is emanating from the order of the CIT(Appeals) dated 4/12/2015 consequent to the order passed u/s.143(3) r.w.s.263 of the Act. 2. ITA No.407/Mds/2015 : The grievance of the assessee in this appeal is with regard to confirmation of levy of penalty u/s.271(1)(c) of the Act. 3. The brief facts of the case are that the assessee has filed the return of income for the assessment year 2009-10 on 20.1.2011 admitting total income of ₹ 8,13,46 .....

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Commissioner of Income-tax(Appeals), who confirmed the order of the Assessing Officer. 4. At the time of hearing, the ld. AR submitted that the assessee s legal heir, Shri Vinay V. Grandhi, came in appeal before this Tribunal regarding quantum addition in ITA No.629/Mds/2014. The Tribunal vide its order dated 7.7.2014, remitted the issue to the file of the CIT(Appeals) to pass appropriate order by observing as follows: 5. After hearing both sides and carefully perusing the material on record, w .....

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n view of the above, the quantum appeal is still pending before the Commissioner of Income-tax(Appeals), the levy of penalty is also remitted back to the file of the Commissioner of Incometax( Appeals) for adjudicating the same after deciding the quantum addition before him. In the result, the appeal of the assessee in ITA No.407/Mds/2015 is allowed for statistical purposes. 6. ITA Nos.408/Mds/2015 and 582/Mds/2016 : The facts of the case are that the assessment was completed u/s.143(3) of the A .....

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pal. Thus, the date of demise of the assessee s mother, Smt. Anusuya Devi on 21.5.2002 relevant to the financial year 2002-03 is to be taken as applicable for the purpose of application of cost of inflation index so as to compute the capital gains arising out of sale of capital assets. Accordingly, he set aside the original assessment order dated 30.12.2011 and directed the AO to pass appropriate order. Against this, the assessee is in appeal before us. 7. There is a delay of 299 days in filing .....

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H. Chitra, who is the administration-in-charge in the office of Shri T. Banusekar, CA, but she has misplaced the same. 7.1 Further, Smt. H. Chitra, in her Affidavit stated that she has received the duly signed appeal papers from the said assessee in the office of Shri T. Banusekar, CA and she has misplaced the appeal papers alongwith fees of ₹ 1000/- for filing appeal among other client papers and the misplacement of appeal papers came to the light only when the Assessing Officer initiated .....

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there is no reasonable cause for filing the appeal belatedly. 9. We have heard both the parties and perused the material on record. In this case, the delay before us, is 299 days in filing the appeals. Now, we have to consider, whether reasonable prudent person would do so. The inference of such delay has to be drawn on the basis of circumstances available on record and conduct of the assessee. As held by the Madras High Court in the case of Sreenivas Charitable Trust, vs. DCIT (280 ITR 357), th .....

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s point, it is pertinent to draw the ratio laid down by the Supreme Court in the case of Collector Land Acquisition v. Mst. Katigi (167 ITR 471), wherein it was held as under : (1). Ordinarily, a litigant does not stand to benefit by lodging an appeal late. (2). Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decide .....

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because of a non-deliberate delay. (5). There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs serious risk. (6). It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 9.1 In our opinion, when substantial j .....

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dras High Court in the case of Srinivas Charitable Trust cited supra, there was no hard and fast rule can be laid down in the matter of condonation of delay and courts should adopt a pragmatic approach and the courts should exercise their discretion on the facts of the each case keeping in mind that in construing, the expression sufficient cause the principle of advancing substantial justice is of prime importance and the expression sufficient cause should receive a liberal construction. Therefo .....

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2015. Immediately on 25.2.2015 the assessee filed appeal before the Tribunal challenging the order u/s.263 of the Act. Hence, in our opinion, when delay is for 299 days, it is to be explained by the assessee that there is a reasonable cause in filing the appeal belatedly. As held by the Supreme Court in the case of Mrs. Sandhya Rani Sarkarv, Smt. Sudha Rani Debi AIR 1978 SC 537 since the condonation of delay is the discretion of this court and it would depend on each case. 9.3 In the present cas .....

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made any argument while adjudicating the appeal by the CIT(A) against the consequential order passed by the AO. The reasons advanced by the assessee by way of affidavits filed by the assessee as well as by one Smt. H. Chitra, are only paper work and an afterthought. Both are self-serving documents. Since, these affidavits are unsubstantiated and not supported any positive evidence, we cannot give any credence to these two affidavits. The law will assist those who are vigilant, not those who slee .....

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from the order of the AO passed u/s.143(3) r.w.s. 263 of the Act The impugnedproperty was inherited from the assessee s mother, Anusuya Devi. Originally, Anusuya Devi purchased the said property along with Late V. Mohan Rao, son of late V. Venugopal and Shri V. Ravindranath, son of late V. Venugopal from princess A.F.Fazilatunnisa Begum vide Doc. No.1303/1960 dt. 12.04.1960. Later, on the demise of V. Anusuya Devi, i.e. 21.5.2002, the property was devolved on the assessee and also on Mrs. R. Rev .....

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case, the assessee s mother acquired the said property along with Late V. Mohan Rao, son of late V. Venugopal and Shri V. Ravindranath, son of late V. Venugopal on 12.4.1960 and after the death of the assessee s mother, the property was devolved on the assessee. 11. As per sec.49(1)(iii)(a) of the Act, whereas the capital asset became the property of the assessee by succession, inheritance or devolution, the cost of acquisition of the asset shall be deemed to be the cost for which the previous .....

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mmissioner of Income-tax(Appeals) observed that the assessee became the owner of the property under consideration only on 20.11.2005, which was sold on 2.2.2006 within a gap of 2 ½ months and it is resulted in short term capital gains. According to the Commissioner of Income-tax(Appeals), the assessee became the owner of the property only on 20.11.2005 and there is no question of consideration of cost of asset in terms of sec.49(1)(iii)(a) of the Act. 12. It is to be noted that this Tribu .....

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f Smt. Pushpa Sofat v. ITO (81 ITD 1), Chandigarh Bench of this Tribunal has expressed similar view. We also noticed that as per the provisions of sec.2(42A), Explanation I(b), it is stipulated that in determining the period for which any capital asset is held by the assessee, in the case of a capital asset which becomes the property of the assessee by way of succession, inheritance etc., the period for which the asset was held by the previous owner shall also be included. 13. It is also to be n .....

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