IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH Before: Shri T.R. Senthil Kumar, Judicial Member And Shri Narendra Prasad Sinha, Accountant Member ITA Nos: 83 & 84/Ahd/2024 Assessment Year: 2012-13

Assessee Represented: Shri Samir Parikh, A.R.

Revenue Represented: Shri Trupti Patel, Sr.D.R.

Date of hearing : 08-05-2024 Date of pronouncement : 14-05-2024 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-

These appeals are filed by the Assessee as against two appellate orders both dated 24.08.2023 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, (in short referred to as “CIT(A)”), arising out of the assessment order passed under section 144 r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) and Penalty levied under section 271(1)(c) of the Income Tax Act relating to the Assessment Year 2012-13 respectively.

2. The registry has noted that there is a delay of 87 days in filing these appeals by the assessee. The assessee explained by way of Notarized Affidavit that he was away from India and residing at USA and when his brother Mahesh Vitthaldas Desai visited India in December 2023, he discussed the issue with Chartered Accountant and got the appeal papers to USA for assessee’s signature. Thereafter filing the same before the Tribunal has caused the delay of 87 days in filing the appeal. The assessee enclosed the United States Passport copy of his brother, who visited India in December 2023. We are satisfied with the reasons stated in the Notarized Affidavit thereby we hereby condone the delay of 87 days in filing the above appeals and adjudicate the cases on merits.

3. The brief facts of the case is that the assessee is an individual who has not filed his Return of Income. The assessee as a Power of Attorney on behalf of his brother Shri Mahesh Vitthaldas Desai and his wife Smt. Smita Mahesh Desai (who are Non Residents) has sold an immovable property situated at Moje, Danteshwar, Sundariya Bunglow, Block No. 10, Vadodara District for a consideration of Rs. 30,00,000/-. However the Stamp Valuation Authority valued the property at Rs.46,49,290/-. Thus the assessee neither disclosed the above sale transaction nor filed the Return of Income u/s.139 of the Act relating to Asst. Year 2012-13. Therefore the case was reopened for escapement of income and issued a notice u/s. 148 of the Act on 30.03.2019 which was duly served upon the assessee. The assessee did not respond to the 148 notice and also to the notices issued u/s. 142(1) calling for various details and information from the assessee. Therefore in the absence of details, the Assessing Officer passed an exparte reassessment order by making an addition of Rs.46,49,290/- as the undisclosed Long Term Capital Gain of the assessee.

4. Aggrieved against the reassessment order, the assessee filed an appeal before Ld. CIT(A) with a delay. The delay was condoned by the Ld. CIT(A) and after considering reply filed by the assessee and the Affidavit by Shri Mahesh Vitthaldas Desai and Smt. Smita Mahesh Desai dismissed the appeal filed by the assessee by observing as follows:

“5.4 Nowhere in the affidavit Sh. Maheshkumar V. Desai and Smitaben M. Desal have stated that they have paid any taxes on the consideration received. For all practical purposes Shri Dilipkumar V. Desai is representative assessee of Shri Maheshkumar V. Desai. As per section 160 of the Income Tax Act, 1961.

160. (1) For the purpose of this Act, "representative assessee" means-

(i) in respect of the income of a non-resident specified in subsection (1) of section 9, the agent of the non-resident, including a person who is treated as an agent under section 163, (2) Every representative assesses shall be deemed to be