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Shri Atul Sanghvi 1607B, Sankarsett Palace, Nana Chowk, Mumbai 400 007 Vs. Asst. CIT CEN-1 Mumbai
January, 22nd 2015
                    DELHI BENCH: `G' NEW DELHI


                          I.T.A .No.1282/Del/2012
                      (ASSESSMENT YEAR- 2004-05)

           S.D.Malik,                         vs    DCIT,
           C-152, FF, Lajpat Nagar-II,              Central Circle-20,
           New Delhi                                ARA Centre, Jhandewalan
           PAN-AAMPM9405D                           Extn., New Delhi-110055.
           (APPELLANT)                              (RESPONDENT)

                   Appellant by  None
                   Respondent by Sh.Satpal Singh, Sr. DR


      This is an appeal filed by the assessee against the order dated 30.01.2012 of
CIT(A)-XXXI, New Delhi pertaining to 2004-05 assessment year on various
grounds. However at the time of hearing an adjournment was moved on behalf of
the assessee stating that particulars of the submissions made before the authorities
below are being obtained in order to demonstrate the perversity of finding in the
impugned order. Considering the material available on record the request for time
was rejected, taking the following grounds raised before us:-
      "D. The Learned CIT(A) erred in law and in facts of the case in holding
      that the appeal was not maintainable due to three days alleged delay. Having
      himself returned perverse findings in upholding the erroneous assessment
      order after duly notifying and hearing the appellant without giving any hint of
      such a view being nursed against the appellant the delay if any is deemed to
      have been condoned and the appeal is liable to held as maintainable."

2.    The record shows that the assessee returned an income of Rs.13,52,418/- by
way of filing a return on 03.08.2007 after issuance of notice under section 148 on
Income tax Act 1961 and recording of the following reasons, the assessee was
required to explain the transaction in the impounded documents:-
                                               2                      I.T.A .No.-1282/Del/2012

              "As per information on record, the assessee had introduced
      Rs.9,70,000/- in her capital a/c as gifts received during the financial year
      2003-04 relevant to this assessment year. On 17.03.2006, a survey was
      conducted at the premises of Lovely Public Senior Secondary School. Out of
      various documents found and impounded is a bunch of documents marked
      Annexure A-7. As per Page-8 of this bunch, one Shri Avtar Singh, Son of Shri
      Bhim Singh of Village Vajirabad, Distt.-Gurgaon, Haryana has given a gift of
      Rs.9,00,000/- to the assessee by means of cheques dated 25.02.2004. However,
      the documents which is a photocopy of the gift deed signed by Shri Avtar Singh
      does not contain this address, PAN, whether he is an assessee or not and his
      relation with the assessee. In the absence of these particulars, the gift is not a
      genuine one and is an arrangement to introduce unaccounted money of the
As per pages 1-5 of Annexure A-6, seized during the above referred survey, the assessee has sold flat No.304, Plot No.-6, Aditya Complex, Preet Vihar, Delhi-110092 for Rs.9,00,000/-. This sale was completed on 06.02.2004. However the assessee has not shown the income from this sale in her statement of income. As such the capital gain on this transaction has not been put to tax." 3. Considering the written submissions filed on 18.12.2009 the assessment order was passed on 13.12.2009 u/s 143/147 making an addition of Rs.9 lacs which was challenged in appeal before the CIT(A). The CIT(A) while holding that the appeal of the assessee was not maintainable, in view of the fact that it was late by three days however proceeded also to discuss the merits of the additions made by the AO and sustained the same. 4. Aggrieved by which the assessee is in appeal before the Tribunal wherein the adjournment has been moved before us. Considering the submissions of the Ld. Sr. DR who relies upon the impugned order we are of the view that in the peculiar facts and circumstances, the impugned order is perverse. In case the Ld. CIT(A) was of the view that the appeal was late than as per the requirements of law, a specific notice for the said shortcoming should have been issued requiring the assessee to explain the delay. From a perusal of the following finding of the CIT(A) it is evident that no such exercise was done:- "On perusal of records, it is observed that the instant appeal is instituted on 02/02/10 and the date of service of the demand notice, as recorded in the form No.-35 filed by the appellant is 31/12/2009. As such the appeal does not comply with the parameters of time limit of filing of appeal as per sec 249(2) of I.T. Act, 1961, and is late by 3 days. It is not maintainable as per law." 3 I.T.A .No.-1282/Del/2012 5. In view of the fact the impugned order has not followed the procedural requirements the same is set aside back to the file to the CIT(A) to do the needful. Since the order is held to be perverse the finding of fact does not survive. The CIT(A) shall first decide the issue of limitation and thereafter pass a fresh order in accordance with law after the assessee giving a reasonable opportunity of being heard and decide each of the points which rise for his determination by way of the grounds raised by the assessee. The said order was pronounced in the open Court in the presence of the parties. 6. In the result the appeal of the assessee is allowed for statistical purposes. The order is pronounced in the open court on 19th of January 2015. Sd/- Sd/- (B.C.MEENA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated:19 /01/2015 *Amit Kumar* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI
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