Income Tax Appellate Tribunal - Cuttack
Satyabrata Dhir, Bhubaneswar vs Dcit, Central Circle-1, Bhubaneswar on 23 December, 2019
आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM आयकर अऩीऱ (तऱाशियाां और अशिग्रहण)/IT(SS)A No.54 to 60/CTK/2017 (नििाारण वषा / Assessment Years :2007-2008 to 2013-2014) Satyabrata Dhir, Vs. DCIT, Central Circle-1, N-3/338, IRC Village, Bhubaneswar Bhubaneswar-751015 स्थायी ऱेखा सां ./ PAN No. : AAMPD 6992 N (अऩीऱाथी /Appellant) .. (प्रत्यथी / Respondent) ननधााररती की ओर से /Assessee by : Shri P.R.Mohanty, Advocate राजस्व की ओर से /Revenue by : Shri Piyush Kolhe, CIT DR सुनवाई की तारीख / Date of Hearing : 18/12/2019 घोषणा की तारीख/Date of Pronouncement : 23/12/2019 आदे श / O R D E R Per Bench:
These are the appeals filed by assessee against the separate orders of CIT(A)-3, Bhubaneswar, all dated 02.01.2017, for the assessment years 2007-2008 to 2013-2014.
2. As per the office note/order sheet entry, all the appeals of the assessee are barred by 103 days. In this regard, the ld. AR of the assessee has filed an application for condonation of delay along with an affidavit stating therein sufficient reasons for delay in filing all the appeals. On the other hand, ld. DR strongly objected to condone the delay. We have also gone through the said application along with the affidavit filed by the assessee explaining the sufficient reasons for 2 IT(SS)A No.54-60/CTK/2017 delay. The Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. MST Katji & Others (167 ITR 471) observed that:
"The legislature has conferred the power to condone delay by enacting sec 5 of limitation Act in order to enable the courts to do substantial justice to parties disposing of matter on "merits". The expression "sufficient cause", employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice that being the life purpose of the existence of the institution of court. It is common knowledge that this court has been making justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
(i) Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
(ii) 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 decided on merits after hearing the parties.
(iii) "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense and pragmatic manner.
(iv) When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
(v) 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 a serious risk.
(vi) 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."
3. The Hon'ble Apex Court further in the case of N. Bal Krishnan v/s. M. Krishnamurthy - [(1998) 7 SCC 123] observed that:
"The primary function of a court is to adjudicate the dispute between the parties & to advance substantial justice. The time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform in to a good cause.3
IT(SS)A No.54-60/CTK/2017 Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seen their remedy promptly. Law of limitation is thus founded on public policy. It is enshrined in the maxim "interest republic up sit finis lithium"
(it is for general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. There is no presumption that delay in approaching the court is always deliberate. In every case of delay, there can be some lapse on the party of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as per of a dilatory strategy, the court must show utmost consideration to the suitor."
6. In the case of Concord of India Insurance Co. Ltd. v. Smt. Nirmala Devi AIR 1979 SC 1666, the Supreme Court has held that a legal advice tendered by a professional and the litigant acting upon it one way or the other could be a sufficient cause to seek condonation of delay and coupled with the other circumstances and factors for applying liberal principles and then said delay can be condoned. Eventually, an overall view in the larger interest of justice has to be taken. None should be deprived of adjudication on merits unless the Court of law or the Tribunal/Appellate Authority finds that the litigant has deliberately and intentionally delayed filing of the appeal that he is careless, negligent and his conduct is lacking in bona fides.
4. Considering the application along with the affidavit of the assessee for condonation of delay and respectfully following the above decisions of Hon'ble Supreme Court, we condone the delay in filing the appeal and the appeal is heard finally.
5. Since the issues involved in all the appeals are identical to each other, except different in figure, therefore, with the consent of both the parties, all the appeals are heard analogously and disposed off by this consolidated order. For the sake of convenience, we shall take into consideration the facts and grounds mentioned in IT(SS)A No.54/CTK/2017 for the assessment year 2007-2008 for deciding all the appeals. Grounds taken by the assessee in the said appeal for assessment year 2007-2008 are as under :-
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1. For that, the order passed U/s 144/153C of the IT., Act, 1961, by the DCIT Central Circle-1, Bhubaneswar on dated 27th March,2015 & the consequential appellate order passed by the CIT(A)-3,Bhubhaeswar in violation of principal of natural justice is arbitrary, illegal and devoid of merit, being unjustified deserves to be quashed in limini.
2. For that, the CIT(A)-3 erred in restricting interest paid on housing loan for let out property to Rs.1,50,000/-.
3. For that, the CIT(A)-3 erred in treating spouse of Appellant as Co-owner and thereby allowing 50% of Interest and principal paid in the Assessment of the Appellant.
4. For that, the appellant craves leave to add/alter/amend further grounds, if any, at the time of hearing of appeal.
6. Brief facts of the case are that the assessee was engaged in retail trading business and also received remuneration as the director of M/s Trishna Real Estate Pvt. Ltd. and rental income from house property. A search and seizure operation was conducted in the case of Artha Tatwa Group on 11.04.2012. During the course of search incriminating documents belonging to the assessee were found and seized. After recording the satisfaction note, a notice u/s.153C of the Act dated 18.07.2014 was issued to the assessee to file return of income within one month of the receipt of the notice for which the assessee made no compliance. However, the assessee filed his return of income in response to notice u/s.153C of the Act on 26.03.2015. Thereafter the AO issued notice to the assessee u/s.143(2) of the Act. Subsequently, the AO completed the assessment u/s.153C/144 of the Act assessing the total income of the assessee at Rs.9,63,264/- and made addition on account of disallowance of interest on borrowings for the assessment year 2007-2008.
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7. Feeling aggrieved from the assessment order, the assessee appealed before the CIT(A) and the CIT(A) partly allowed the appeals of the assessee.
8. Further aggrieved from the order of CIT(A), the assessee is in appeals before us.
9. We have heard the arguments of both the sides and carefully perused the record of the Tribunal.
10. Ld. Counsel of the assessee submitted that the assessee purchased a house property by taking loan of Rs.25 lakhs from ICICI bank and after purchase the property was let out and income thereon has been shown under the head 'income from house property'. Ld. Counsel further submitted that during the assessment proceedings desired documents could not submitted before the AO as the same were misplaced and the assessee during the appellate proceedings submitted bankers certificate for claiming deduction u/s.24(b) of the Act amounting to Rs.2,16,306/- and the claim of deduction u/s.80C(2)(xviii) of the Act for Rs.1,00,000/-. Ld. Counsel vehemently pointed out that despite explaining for claim including the fact that the assessee purchased building from his own funds and borrowed funds and the name of his wife was added as co-applicant only for the sake of requirement of the ICICI bank and even in the sale deed executed in favour of the assessee the name of his wife has not been mentioned. Ld. 6 IT(SS)A No.54-60/CTK/2017 Counsel submitted that entire funds including loan from ICICI bank has been procured by the assessee and the amount of installments includes interest of loan are being paid by the assessee out of his own funds and there is no contribution of his wife thereon. Ld. Counsel further pointed out that since the entire financial arrangement has been made by the assessee and the entire rental income earned from the building has been shown by the assessee in his return of income as income from house property, therefore, the assessee is entitled for deduction u/s.24(b) of the Act with regard to interest paid on house loan u/s.80C(2)(xviii) of the Act. It was also contended by ld. AR that despite explaining the entire facts and circumstances and substantiating both the claims of the assessee, the AO denied deductions on both the counts and the CIT(A) restricted and reduced the claim to Rs.1,50,000/- with regard to deduction u/s.24(b) of the Act and Rs.1,00,000/- regarding Section 80C(2)(xviii) of the Act and the same was further reduced to Rs.50% by wrongly taking note of the fact that the name of the assessee's wife has been mentioned as co-applicant of the housing loan. Ld. Counsel further submitted, at bar, that the wife of the assessee has never claimed any deduction u/s.24(b) of the Act nor claimed any deduction u/s.80C of the Act and has not shown any rental income in a return of income for any relevant assessment years and merely because her name was added as joint-applicant in the housing loan for 7 IT(SS)A No.54-60/CTK/2017 the satisfaction of the banker, the amount of deduction cannot be reduced to 50% without any justified reason and basis. Ld. Counsel for the assessee also placed reliance on the various decisions including order of ITAT 'C' Bench Delhi dated 31.01.2018, ITA No.2632/Del/2014 in the case of Gowri Dhawan and drew our attention to the para '4' of the said order and submitted that when the amount has been borrowed in the name of the assessee and amount has been utilized to repay the loan then the claim u/s.24(b) of the Act and other claims has to be allowed to the assessee who is repaying the loan and showing rental income in his return of income.
11. Replying to the above, ld. CITDR strongly supported the assessment as well as first appellate order and submitted that there is a categorical finding by the CIT(A) in para 3 that the assessee and Susmita Das are entitled to claim of interest of Rs.2,16,306/- u/s.24(b) of the Act and Rs.1,43,730/- u/s.80C of the Act but both the claims have been reduced to Rs.1,50,000/- and Rs.1 lakh respectively and the CIT(A) was also right in only allowing 50% of the amount as deduction in the case of the assessee due to reason that the wife of the assessee Susmita Das was co-applicant of the housing loan.
12. On careful consideration of the rival submissions of both the sides, first of all, we may point out that the ld.DR has not controverted this fact that the name of the assessee's wife Smt. Susmita Das has been 8 IT(SS)A No.54-60/CTK/2017 added as co-applicant in the housing loan application submitted to the bank but in the sale deed executed in favour of the assessee, available in the sale deed registered on 12.01.2006 in the column of purchaser at page 3 the only name of assessee has been mentioned and there is no mention of name of his wife Smt. Susmita Das co-purchaser. Neither from the assessment order nor from the first appellate order we are unable to see any reason as to why the ld. CIT(A) reduced the claim of the assessee u/s.24(b) of the Act from Rs.2,16,306/- to Rs.1,50,000/- and another claim of the assessee u/s.80C of the Act from Rs.1,43,730/- to Rs.1 lakh, therefore, these findings of the CIT(A) cannot be held as sustainable. The lower authorities could have verified from their data base as to whether the assessee's wife had claimed deduction u/s.24(b) and 80C(2)(xviii) of the Act because his wife was filing return of income regularly. On perusal of the return of income and computation of income produced before us, we noticed that assessee's has not claimed any deduction under the disputed issue. Keeping in view the foregoing discussion and taking into consideration the entire facts and circumstances including the sale deed etc., we are satisfied that when the assessee's wife is not claiming any deduction and not showing any rental income in the return of income then the assessee who is individual appearing in the sale deed his entitled for entire claim as claimed by him u/s.24(b) as well as Section 80C(2)(xviii) of Act. 9
IT(SS)A No.54-60/CTK/2017 Consequently, the ground of assessee are allowed and the AO is directed to allow the assessee both the claims.
13. Since by way of earlier part of this order, we have allowed appeal of the assessee for A.Y.2007-2008, therefore, our conclusion drawn therein shall apply mutatis mutandis to the other appeals pertaining to A.Y.2008-2009 to 2013-2014 having identical and similar facts and circumstances of the case and hence grievance the assessee in all the appeals is allowed.
14. In the result, all the appeals of the assessee are allowed.
Order pronounced in the open court on 23/12/ 2019.
Sd/- Sd/-
(C.M.GARG) (L.P.SAHU)
न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य / ACCOUNTANT MEMBER
कटक Cuttack; ददनाांक Dated 23/12/2019
Prakash Kumar Mishra, Sr.P.S.
आदे श की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to :
1. अऩीऱाथी / The Appellant-
2. प्रत्यथी / The Respondent-
3. आयकर आयक् ु त(अऩीऱ) / The CIT(A),
4. आयकर आयुक्त / CIT
5. वविागीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack
6. गार्ा पाईऱ / Guard file.
सत्यावऩत प्रनत //True Copy// आदे शािुसार/ BY ORDER, (Senior Private Secretary) आयकर अपीऱीय अधिकरण, कटक / ITAT, Cuttack