IN THE INCOME TAX APPELLATE TRIBUNAL

HYDERABAD BENCH ‘A', HYDERABAD

BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER

AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER

ITA No. 876/Hyd/2017

Assessment Year: 2012-13

Rajesh Naidu vs. Dy. Commissioner of

Munirathnam, Hyderabad. Income-tax,
Central Circle – (1)(3), Hyd.
PAN – ADMPM 6749F

Appellant Respondent

ITA No. 877/Hyd/2017

Assessment Year: 2012-13

Kalpana Raj Munirathnam, vs. Dy. Commissioner of

Hyderabad. Income-tax,
Central Circle – (1)(3), Hyd.
PAN – AFXPM 1529A

Appellant Respondent

Assessee by: Shri A.V. Raghuram

Revenue by: Smt. Suman Malik

Date of hearing: 01/02/2018

Date of pronouncement: 02/02/2018

O RDE R

PER V. DURGA RAO, J.M:

Both these appeals filed by the assessees, who are

husband and wife, are directed against the orders of CIT(A) –
11, Hyderabad both, dated 29/10/2016 for AY 2012-13. and
2013-14. As identical issue is involved in these appeals, they
were clubbed and heard together and, therefore, a
consolidated order is passed for the sake of convenience.

2. Briefly the facts as taken from the assessee Shri Rajesh

Naidu Munirathnam are, the assessee, an individual, is the
2 I.T.A. Nos. 876 & 877/Hyd/2017
Rajesh Naidu M. and Kalpana Raj M

Managing Director of M/s General Agri Corporation Ltd.,

Hyderabad. He did not file any return of income originally. A
search and Seizure operation u/s 132 of the Income-tax Act,
1961 (in short ‘the Act’) was conducted on 16/11/2012,
consequent to which a notice u/s 153A of the Act was issued
on 06/12/2013. In response, a return of income was filed on
01/10/2014 admitting an income of Rs. 5,87,51,850/-. The AO
passed an order u/s 144 r.w.s. 153A of the Act on 31/03/2015
determining the assessable income of the assessee at Rs.
5,90,47,689/- by bringing to tax the capital gains on sale of
shares of M/s General Agri Corporation Ltd.

2.1 Simultaneously, penalty proceedings u/s 271(1)(c) were

initiated. In the penalty proceedings, the assessee contested
that the assessment of capital gains was in fact what was
declared in the return of income filed in response to notice u/s
153A and it was stated that assessment was not based on
incriminating material and further urged that though
assessment was not contested in appeal, a penalty could not
be levied of the assessment was technically invalid.

2.2 After considering the submissions of the assessee, the

AO rebutted the objections by stating that jurisdiction was
validly assumed u/s 153A and the income offered in the return
filed in response to notice u/s 153A was in consequence of
detection during the search, and that the income assessed
was something that should have been disclosed in a return
filed u/s 139(1) in the first place. Accordingly, he levied a
minimum penalty of Rs. 1,35,00,000/-.

3. Aggrieved by the order of the AO, the assessee

preferred an appeal before the CIT(A) with a delay of 70 days
3 I.T.A. Nos. 876 & 877/Hyd/2017
Rajesh Naidu M. and Kalpana Raj M

and filed an affidavit seeking condonation of delay of 70 days

along with a petition and medical certificate.

4. The CIT(A) after considering the petition for condonation

and medical certificate issued by the Doctor, observed that
there was no hospitalisation and the patient was treated at
home with medication and physiotherapy and the medical
condition discernible from the ‘Medical Certificate’ does not
suggest that assessee’s medical condition could prevent him
from even consulting his counsel, which errand is by no means
an ardous act. Accordingly, the CIT(A) dismissed the appeal
of the assessee in-limine on the ground that the assessee has
not been able to make out a case for sufficient cause
contemplated in section 249(3) as a result of which the delay
in filing this appeal cannot be condoned.

5. Aggrieved by the order of the CIT(A), the assessee is in

appeal before us raising the following grounds of appeal:
“ 1. The order of the learned CIT(A) is erroneous both on
facts and in law.

2. The learned CIT(A) erred in dismissing the appeal as

in limine without condoning the delay mere on the basis
of non appearance for one hearing, though the material
required for condonation of delay is before him.

3. The learned CIT (A) erred in relying a decision of the

Tribunal when the decision of the Jurisdictional High
Court is very much in favour of the assessee to the
effect that where there is a good case on merits, the
revenue should not stand on technicalities of delay, and
thereby erred in dismissing the appeal.

4. The learned CIT(A) ought to have appreciated the fact

that the assessment order is invalid and no penalty
could be levied on an invalid order and therefore ought
to have condoned the delay and deleted the penalty
levied ujs.271(1)(c).

5. Any other ground that may be urged at the time of

hearing.”
4 I.T.A. Nos. 876 & 877/Hyd/2017
Rajesh Naidu M. and Kalpana Raj M

6. Before us, ld. Counsel for the assessee submitted that

the health condition of the assessee was very bad and at the
relevant point of time he was not able to move and was
suffering from severe cervical spondylosis with disc protrusion
and he has diabetes and thyroid problem as well as he got
urinary tract infection. He, therefore, submitted that under
these circumstances, he was not able to approach the C.A.
due to which there was a delay in filing the appeal before the
CIT(A). He pleaded that the delay may be condoned and the
appeal may be remitted back to the file of the CIT(A) with a
direction to adjudicate the same on merits.

7. The ld. DR, on the other hand, relied on the order of

CIT(A).

8. We have considered the submissions of both the parties

and perused the material on record as well as gone through
the orders of revenue authorities. There was a delay of 70
days in filing the appeal by the assessee before the CIT(A).
The assessee filed a Doctor Certificate dated 26/12/2015
before the CIT(A), which was reproduced by the CIT(A) in his
order at page 3 of his order. For the sake of clarity, the same
is reproduced as under:
"This is to certify that Mr.tn. Rajesh Naidu, 49 yrs/male
came to our hospital on 15.10.15 with complaints of
weakness of both upper and lower limbs (Quadri
paresis). He was investigated accordingly MRI cervical
spine showed SEVERE CERVICAL SPONDYLOSIS
WITH DISC PROTRUSION. He was advised for surgery.
Due to his personal problems he cannot get the surgery
done. He was advised bed rest and restrict his physical
activities. He was treated at home with medications, and
Physiotherapy. Two weeks later he got Urinary tract
infection for which IV antibiotics were given by home
nursing. His Ailments Diabetes and thyroid problem were
treated accordingly. He had OPD follow ups every two
weeks. His symptoms improved after 2 months of regular
5 I.T.A. Nos. 876 & 877/Hyd/2017
Rajesh Naidu M. and Kalpana Raj M

physiotherapy and medications. He was reviewed again

23.12.15 assessment done and was permitted to carry
out mimal Physical activities/ work to his possible
extent. He was also advised for regular follow up."

9. From the Medical Certificate, it is very clear that the

assessee is suffering from various diseases, such as, severe
cervical spondylosis with disc protrusion and he has diabetes
and thyroid problem as well as he got urinary tract infection.
Under these circumstances, assessee was not able to
approach the CA and file the appeal before the CIT(A) within
the stipulated time. Though, the assessee was not admitted in
the hospital, but, from the medical certificate, it is clear that
assessee is suffering from various diseases, for which he
needs to take up rest as per the advice of the Doctor. In our
opinion, the assessee is prevented by sufficient cause in not
filing the appeal before the CIT(A) in time. Accordingly, we set
aside the order of the CIT(A) and restore the file back to the
file of the CIT(A) with a direction to condone the delay of 70
days in filing the appeal before him and adjudicate the appeal
de-novo, on merits in accordance with law after providing
reasonable opportunity of being heard to the assessee in the
matter. The assessee is directed to appear before the CIT(A)
as and when the appeal is fixed for hearing to substantiate his
case.

10. As the facts and grounds are materially identical in the

case of Kalpana Raj M to that of Rajesh Naidu Munirathnam
(supra), following the conclusions drawn therein, we restore
this appeal also to the file of the CIT(A) with identical
directions.
6 I.T.A. Nos. 876 & 877/Hyd/2017
Rajesh Naidu M. and Kalpana Raj M

11. In the result, both the appeals under consideration are

treated as allowed for statistical purposes.
Pronounced in the open court on 2 nd February, 2018.

Sd/- Sd/-
(S. RIFAUR RAHMAN) (V. DURGA RAO)
ACCOUNTANT MEMBER JUDICIAL MEMBER

Hyderabad, dated 2 nd February, 2018

kv

Copy forwarded to:

1. Rajesh Naidu Munirathnam

2 Kalpana Raj Munirathnam, C/o S/Shri K. Vasantkumar, AV
Raghuram, P. Vinod & M. Neelima Devi, Advocates, 610
Babukhan Estate, Basheerbagh, Hyderabad – 500 001.

2. DCIT, Central Circle – 1(3), Hyderabad.

3. CIT(A) - 11, Hyderabad
4 Pr. CIT (Central), Hyderabad
5 The DR, ITAT, Hyderabad
6 Guard File