Ita/100008/2018 Of G. Rajasekarappa (Huf) v. The Income Tax Officer

1 ITA No.100008/2018 C/w. ITA No.100007/2018 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 08 DAY OF FEBRUARY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA AND THE HON’BLE MR. JUSTICE BELLUNKE A.S. INCOME TAX APPEAL No.100008 OF 2018C/w. INCOME TAX APPEAL No.100007 OF 2018 IN INCOME TAX APPEAL No.100008 OF 2018: BETWEEN: G. RAJASEKARAPPA (HUF) REPRESENTED BY ITS KARTA SHRI. G. RAJASEKARAPPA GUNJALLI, AGED: 72 YEARS, S/O. LATE G. BASAPPA GUNJALLI LANDLORD, C/O. IOC DEALERS CBS CIRCLE, GANGAVATHI, DIST: KOPPAL, PAN: . ... APPELLANT (BY SRI H.R. KAMBIYAVAR, SRI BALARAM R. RAO & SMT. PATRI SHASHIKALA, ADVOCATES) AND: THE INCOME TAX OFFICER WARD 2, HOSAPET. ... RESPONDENT (BY SRI. Y.V. RAVIRAJ, ADVOCATE) THIS ITA IS FILED UNDER SECTION 260A OF THE INCOME-TAX ACT, 1961 PRAYING TO FORMULATE THE SUBSTANTIAL QUESTION OF LAW AS STATED IN THE APPEAL MEMORANDUM & ALLOW THE APPEAL AND SET ASIDE THE ORDER OF INCOME TAX APPELLATE TRIBUNAL DATED 31.08.2017 BEARING IN ITA NO.873/BANG/2017 FOR THE ASSESSMENT YEAR 2010-11. IN INCOME TAX APPEAL No.100007 OF 2018: BETWEEN: G. RAJASEKARAPPA (HUF) REPRESENTED BY ITS KARTA SHRI.G. RAJASEKARAPPA GUNJALLI, AGED: 72 YEARS, S/O. LATE G. BASAPPA GUNJALLI LANDLORD, C/O. IOC DEALERS CBS CIRCLE, GANGAVATHI, DIST: KOPPAL, PIN CODE: 583227 PAN: . ... APPELLANT (BY SRI H.R. KAMBIYAVAR, SRI BALARAM R. RAO & SMT. PATRI SHASHIKALA, ADVOCATES) AND: THE INCOME TAX OFFICER WARD 2, HOSAPETE. PRESENTLY BEING ASSESSED BY INCOME TAX OFFICER, WARD-1, NEAR PWD OFFICE, HOSPET ROAD, KOPPAL, PIN CODE – 583 231. ... RESPONDENT (BY SRI. Y V RAVIRAJ, ADVOCATE) THIS ITA FILED UNDER SECTION 260A OF THE INCOME-TAX ACT, 1961 PRAYING TO FORMULATE THE SUBSTANTIAL QUESTION OF LAW AS STATED IN THE APPEAL MEMORANDUM & ALLOW THE APPEAL AND SET ASIDE THE ORDER OF INCOME TAX APPELLATE TRIBUNAL DATED 31.08.2017 BEARING IN ITA.NO.872/BANG/2017 FOR THE ASSESSMENT YEAR 2009-10. THESE APPEALS COMING ON FOR HEARING ON IA THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING: J U D G M E N T Though these appeals are listed to consider IA Nos.1 & 2 of 2018 seeking condonation of delay of 22 days in filing ITA Nos.100007 and 100008 of 2018 on condonation of delay, with the consent of learned counsel on both sides, they are heard for admission. 2. On hearing the learned counsel for the respective parties, we find that the following substantial question of law would arise for our consideration: “Whether in the facts and circumstances, the Income Tax Appellate Tribunal was right in dismissing the appeals filed by the appellant on the ground that they were belated by 218 days and thereby non-considering the appeals on merits?” 3. The appeals are admitted to consider the aforesaid substantial question of law. 4. Having heard learned counsel for the respective parties on the aforesaid substantial question of law, with the consent of the learned counsel, we have disposed off the appeals finally. 5. The appellant / assessee has assailed the legality and correctness of the common order passed by the Income Tax Appellate Tribunal, “SMC-A”, Bangalore Bench (hereinafter referred to as ‘ITAT’ for the sake of convenience) in Income Tax Appeal Nos.872/Bang/2017 and No.873/Bang/2017 for the Assessment Years 2009-10 and 2010-11 respectively. By the said common order, the ITAT has dismissed the appeals as being barred by limitation as there was a delay of 218 days in filing the appeals. 6. Briefly stated the facts are that the appellant is assessed to tax as Hindu Undivided Family (HUF). The assessee is engaged in renting of immovable properties which are inherited and 5. The appellant / assessee has assailed the legality and correctness of the common order passed by the Income Tax Appellate Tribunal, “SMC-A”, Bangalore Bench (hereinafter referred to as ‘ITAT’ for the sake of convenience) in Income Tax Appeal Nos.872/Bang/2017 and No.873/Bang/2017 for the Assessment Years 2009-10 and 2010-11 respectively. By the said common order, the ITAT has dismissed the appeals as being barred by limitation as there was a delay of 218 days in filing the appeals. 6. Briefly stated the facts are that the appellant is assessed to tax as Hindu Undivided Family (HUF). The assessee is engaged in renting of immovable properties which are inherited and sale of plots, by converting agricultural land into non-agricultural lands. For the Financial Years 2008-09 and 2009-10 (Assessment Years: 2009-2010 & 2010-11 respectively), appellant filed his return of income on 16.02.2012 declaring certain income being income from house property, income from capital gains and income from other properties. During the course of assessment proceedings, the appellant appeared through his authorized representative and filed reply to the queries of the Assessing Officer. Appellant for the said years claimed deduction under Section 24 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act' for the sake of brevity) of a certain sum under the head interest on housing loans. The Assessing Officer disallowed the interest on borrowed capital from two banks stating that the said amount was not utilised for the purpose of building construction. Thereafter, the Assessing Officer computed the capital gains and directed C/w. ITA No.100007/2018 the assessee to pay the tax accordingly. Being aggrieved by the order passed by the Assessing Officer, appellant preferred appeals before the first appellate authority, viz., Commissioner of Income Tax (appeals), which dismissed those appeals. 7. Being aggrieved by the dismissal of the appeals by the Commissioner of Income Tax (Appeals), the assessee preferred appeals before the ITAT. There was a delay of 218 days in filing the appeals. ITAT has held that though medical grounds were cited as the cause for delay, same was not explained in accordance with law and therefore, dismissed the appeals as being barred by limitation and consequently, did not consider the appeals on merits. Being aggrieved, the assessee has preferred these appeals. 8. We have heard learned counsel for the appeals and learned Standing counsel for the respondent/Department and perused the material on record. 9. Appellant’s counsel contended that the delay of 218 days occurred on account of ill-health of Sri.G.Rajasekarappa, who is representing the HUF, as he had undergone cardiac surgery and that he was also suffering from severe back-pain and other cardiac problems and chronic diseases such as kidney stones and was advised to take bed-rest for six months and therefore, he could not prefer the appeals in time. That the ITAT ought to have appreciated the said reasons and condoned the delay in filing the appeals and considered the appeals on merits. Therefore, this Court may set aside the orders of the Tribunal and remand the matters to the ITAT on condoning the delay in filing the appeals and direct the ITAT to consider the same on merits as the appellant has a good case on merits. ITA No.100008/2018 C/w. ITA No.100007/2018 10. Per contra, learned Standing Counsel for the respondent/Department contended that the delay is 218 days which is a long delay and the explanation offered is not sufficient in law so as to condone the delay and that there is no merit in these appeals. ITA No.100008/2018 C/w. ITA No.100007/2018 10. Per contra, learned Standing Counsel for the respondent/Department contended that the delay is 218 days which is a long delay and the explanation offered is not sufficient in law so as to condone the delay and that there is no merit in these appeals. 11. Having considered the rival contentions of the respective parties, we find that the ITAT has dismissed the appeals solely on the ground that there being 218 days delay in filing the appeals. The reasons for the delay in filing the appeals are on account of ill-health of appellant, Sri.G.Rajasekarappa, who is representing HUF, on account of cardiac surgery and subsequent chronic diseases related to his age and the medical advice to take bed rest. The said reasons, in our view, are sufficient in law so as to condone the delay of 218 days in filing the appeals. In the circumstances, the delay of 218 days in filing the appeals is condoned. The appeals are remanded to the ITAT to consider the same on merits and in accordance with law. Consequently, the appeals are disposed off by answering the substantial question of law in favour of the appellant. Sd/- JUDGE RK/- Sd/- JUDGE