ASHOKA TANWR ,JAIPUR V. ITO, WARD 6(4), JAIPUR, JAIPUR

ITA 966/JPR/2024

AI Insights

The case involves Ashok Tanwer, the appellant, who contested the assessment order passed under section 148 of the Income Tax Act, 1961, by the AO, which was confirmed by the CIT(A). The primary contention was regarding the validity of the assessment and the treatment of the sale consideration of an immovable property as short-term capital gain without considering the cost value. The appellant also complained about the non-consideration of an adjournment application. The ITAT found that the appellant had not complied with earlier notices and had not participated adequately in the proceedings. However, considering the documents filed, the ITAT decided to give another opportunity to the appellant to present his case.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 23937 (ITAT-JAIPUR)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Other Referred Cases: GKN Driveshafts (India) Ltd. vs. Income-tax Officer [2002] 125 Taxman 963 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAUTAM SINGH CHOUDHARY; LD
• Assessee Lawyers: SANJAY GODHA; LD
• Keywords: Opportunity of being heard; Capital Gains
• Section: 148; 144; 250; 133(6); 139(4)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH “SMC”, JAIPUR BEFORE Dr. S. SEETHALAKSHMI, JUDICIAL MEMBER AND SHRI GAGAN GOYAL, ACCOUNTANT MEMBER ITA No. 966/JPR/2024 (A. Y. 2010-11) Ashok Tanwer, F-162, Panchsheel Marg, C-Scheme, Jaipur 302001 PAN No.:AAXPT8144R ...... Appellant Vs. Income Tax Officer, Ward-6(4), Jaipur ...... Respondent Appellant by : Mr. Sanjay Godha, CA., Ld. AR Respondent by : Mr. Gautam Singh Choudhary, JCIT- Ld. DR Date of hearing :10/03/2025 Date of pronouncement :25/03/2025 O R D E R PER GAGAN GOYAL, A.M: This appeal by assessee is directed against the order of NFAC, Delhi dated 15.05.2024 passed u/s. 250 of the Income Tax Act, 1961 (in short ‘the Act’). The assessee has raised the following grounds of appeal: - 1. That on the facts and in the circumstances of the case and in law, the Ld. CIT (A) grossly erred in confirming the assessment made u/s. 148 of the Act by the Ld. AO as valid which is bad in law. 2. That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) grossly erred in confirming the amount of Rs. 1071125/-being sale consideration, is 2 treated as short term capital gain without considering the cost value by the AO as valid which is bad in law and illegal. 3. That the Ld. CIT(A) went wrong in passing the order without considering the adjournment application submitted on 30/04/2024 income tax portal which is bad in law. 4. That the appellant craves leave to add, alter, amend or withdraw any of the grounds of appeal before or at the time of hearing. 2 The brief facts of the case are that the assessee filed his return of income on 09.03.2011 u/s. 139(4) of the Act declaring total income at Rs. 1,58,210/-. Information was there in the possession of the AO that the assessee had sold an immovable property for sale consideration of Rs. 10.7 Lacs. Notice u/s. 133(6) of the Act was issued to the assessee, but the same remained uncompiled. Thereafter, notice u/s. 148 of the Act was issued vide dated: 25.03.2017, but neither any return was filed nor any compliance was made. Ultimately, the case of the assessee was assessed making addition under the head capital gains amounting to Rs. 10,71,125/-. The assessee being aggrieved with the same preferred an appeal before the Ld. CIT(A), who in turn dismissed the appeal of the assessee by confirming the order of the AO, as the assessee as the assessee was non-compliant here also. Number of opportunities (Five dates) were given to the assessee vide para 4 of the appeal order. The assessee being further aggrieved with the order of the Ld. CIT(A), preferred the present appeal before us. 3 We have gone through the order of the AO, order of the Ld. CIT(A) and submissions of the assessee alongwith grounds taken before us. It is observed that the assessee’s argument/ground that no concrete reasons were supplied to the assessee, based on which he can comply before the AO is found to be 3 baseless. As the assessee is entitled to receive the reasons only after filing the return in compliance to notice u/s. 148 of the Act. As held by the Hon’ble Apex Court in the case of [2002] 125 Taxman 963 (SC)GKN Driveshafts (India) Ltd.vs.Income-tax Officer: - “We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The Assessing Officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the Assessing Officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the Assessing Officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the abovesaid five assessment years.” 4 As the assessee neither responded the notice issued u/s. 133(6) of the Act nor filed any return in compliance to section 148 of the Act. In view if this fact, ground no. 1 wherein the assessee is challenging the action of AO u/s. 144 r.w.s. 147 of the Act and confirmation of the same by the Ld. CIT(A) is found to be baseless and vague hence dismissed. As far as the proceedings before the Ld. CIT(A), again the assessee has no legs to stand, as the same history repeated here also, i.e. no participation and non-compliance as mentioned (supra). 5. The assessee himself admitted that he applied for adjournment of the hearing on 15.04.2024 and 30.04.2024 vide ground no. 3, it establishes that the assessee was well versed with the previous notices issued (Total five), still instead of cooperating in the proceedings, he applied for adjournment. The death of senior partner can justify adjournment taken on 15.04.2024 but not before that and after that. In all the grounds the assessee is in blaming mode, but it is observed that none of the grounds he has taken, able to substantiate the same. 4 But, as the relevant documents are filed before us for verification, we deem it fit to give another inning to the assessee for explaining his case before the authorities below. In the light of above, the matter is restored back to the file of the AO for fresh consideration after giving the assessee a proper opportunity of being heard and provisions of section 282 of the Act is to be followed. The assessee is directed to be vigilant and cooperative enough before the AO without seeking any adjournment. 6. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced in the open court on the 25thday of March 2025. Sd/- Sd/- (Dr. S. SEETHALAKSHMI) (GAGAN GOYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER Jaipur, िदनांक/Dated: 25/03/2025 Copy of the Order forwarded to: 1. अपीलाथ /The Appellant , 2. \u000eितवादी/ The Respondent. 3. आयकर आयु\u0015 CIT 4. िवभागीय \u000eितिनिध, आय.अपी.अिध., Sr.DR., ITAT, 5. गाड फाइल/Guard file. BY ORDER, //True Copy// (Asstt.Registrar) ITAT, Jaipur 5 Details Date Initials Designation 1 Draft dictated on PC on 25.03.2025 Sr.PS/PS 2 Draft Placed before author 25.03.2025 Sr.PS/PS 3 Draft proposed & placed before the Second Member JM/AM 4 Draft discussed/approved by Second Member JM/AM 5. Approved Draft comes to the Sr.PS/PS Sr.PS/PS 6. Kept for pronouncement on Sr.PS/PS 7. File sent to the Bench Clerk Sr.PS/PS 8 Date on which the file goes to the Head clerk 9 Date of Dispatch of order "