9911796707
TMI Blog2023 (6) TMI 1422X X X X Extracts X X X X X X X X Extracts X X X X ..... which is not taxable, since it was on sale of agricultural land which is exempt from tax as well as for not condoning the delay in filing the appeal of more than seven hundred ninety (790) days. 3. Brief facts are that the assesse is an individual who had filed his return of income for AY. 2010-11 on 21.01.2011 declaring total income of Rs.2,39,12,917/-; and during the year under consideration, he had sold agricultural land and the profit of such land was also offered (inadvertently) to tax as Long Term Capital Gain (LTCG) amounting to Rs.34,16,728/-. During the assessment proceedings, pursuant to the direction of AO, the assessee had submitted the copy of purchase and sale agreement of the agricultural land, details of capital gain and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y such claim to have sold his agricultural land and the gain from it was not taxable. Rather, according to Ld CIT(A), the AO accepted the return of income wherein assessee has himself considered the profit from sale of land as taxable as LTCG of Rs.34,16,728/-. Therefore, according to him, since AO has accepted the return of income filed by assessee, now the assessee cannot turn back and blame the AO for his failure as to whether he should have offered the LTCG on sale of land for taxation or not. And the Ld. CIT(A) in the impugned order acknowledges that the assessee has filed additional evidence in respect of his claim that the asset in question which was sold was agricultural land and profit from it was not taxable. However, the Ld. CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltural land if situated in the specified area as per Act are outside the purview of capital assets and so exempt from the levy of tax. In the light of the expert opinion, he had filed the appeal before the First Appellate Authority and due to which appeal couldn't be filed in time and thus delay happened for 790 days for filing of appeal. According to the Ld. AR, the Ld. CIT(A) erred in not admitting the appeal of the assessee because not filing of appeal was not intentional/deliberate. According to the Ld. AR, merely because the assessee has offered LTCG on sale of agricultural land, the AO after examination of documents ought not to have levied tax even if due to ignorance assessee has offered it for tax. 5. Drawing our attention to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income-tax that the prize money earned by the petitioner could not be taxed under the Income-tax Act, 1961. It is true that it was at a later stage that such contention was raised by the petitioner, but the said contention was a pure question of law and the Commissioner of Income-tax ought to have considered the said contention on its merits and ought not to have declined to entertain it on the ground of delay. There cannot be any estoppel against the statute, Article 265 of the Constitution of India in unmistakable terms provides that no tax shall be levied or collected except by authority of law. Acquiescence cannot take away from a partly the relief that he is entitled to where the tax is levied or collected without authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Since Article 265 of the Constitution of India prohibit tax to be collected without authority of law, the assessee's ignorance cannot be a ground to refuse examination of the claim made by the assessee. Even though, inadvertently assessee offered the LTCG on sale of land, he ought to have been allowed to urge the claim before the Ld. CIT(A) because there is no estoppel against law; and the Article 265 of the Constitution prohibits tax authority to collect tax without authority of law. Therefore, in the interest of justice and fair play, we set aside the impugned order of the Ld. CIT(A) and admit this issue in respect of sale of land at Igatpuri on which assessee has offered LTCG to the tune of Rs.34,16,728/- which assessee is now claimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court that it was not necessary to set aside the order of assessment and remand the matter to the assessing authority for fresh assessment after giving to the assessee a proper opportunity of being heard. 2. Two questions were placed before the High Court, of which the second question is not pressed. The first question reads thus: "1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not setting aside the assessment order in spite of a finding arrived at by it that the Income-tax Officer had not given a proper opportunity of hearing to the assessee ?" In our opinion, there can only be one answer to this question which is inherent in the question itself: in the negative and in favour of the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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