DOLLY JINDAL,LUCKNOW V. ITO-3(5), LUCKNOW

ITA 327/LKW/2023

AI Insights

The case involves an appeal by Dolly Jindal against the order of the National Faceless Appeal Centre (NFAC), which upheld the assessment made by the Income Tax Officer (ITO) for the Assessment Year 2012-13. The ITO had added a capital gain of Rs.12,73,438 to the assessee's income, which was considered undisclosed income, as the assessee failed to provide documentary evidence supporting her claim of a capital loss. The NFAC dismissed the appeal, leading the assessee to approach the Income Tax Appellate Tribunal, Lucknow. The Tribunal noted the absence of the assessee during the hearing and the lack of an adjournment application but decided to restore the case to the ITO for a fresh assessment, providing the assessee another opportunity to present her case.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 126785 (ITAT-LUCKNOW)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2025
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUNIL KUMAR RAJWANSHI
• Keywords: Set aside; Opportunity of being heard; Cost of acquisition; Principle of natural justice; Audi alteram partem
• Section: 148

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, LUCKNOW BEFORE SHRI. SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA No.327/LKW/2023 Assessment Year: 2012-13 Dolly Jindal 107, Beverly Park Apartment New Hyderabad Lucknow v. The Income Tax Officer 3(5) Lucknow TAN/PAN:AFMPJ5089D (Appellant) (Respondent) Appellant by: None Respondent by: Shri Sunil Kumar Rajwanshi, D.R. Date of hearing: 23 04 2025 Date of pronouncement: 25 04 2025 O R D E R This appeal has been preferred by the assessee against order dated 28.12.2021, passed by the National Faceless Appeal Centre, Delhi (NFAC) for Assessment Year 2012-13. 2. The brief facts of the case are that the Income Tax Department noticed that the assessee had sold a residential house for a consideration of Rs.50,00,000/- during the year under consideration, but no return of income had been filed by the assessee. During the course of assessment proceedings, in response to notice under section 148 of the Income Tax Act, 1961 (hereinafter called “the Act’), the assessee had furnished computation of income, copy of bank statement, capital account ITA No.327/LKW/2023 Page 2 of 6 of M/s Jai Mahadev Seasoning Plant & Chipper Industries. The Assessing Officer (AO) noted from the computation of income that the assessee had claimed capital loss of Rs.3,12,917/-, but had not provided any documentary evidence to support her claim. The AO, from the letter of the Estate Officer, HSVP, Jagadhari, noticed that the total purchase price of the said property, which was registered on 27.08.2004, was Rs.15,00,000/- only. The AO accordingly calculated the Capital Gain of the said property as under: Cost of acquisition as on 27.08.2004 : Rs.15,00,000/- Assessee’s share of cost : Rs.7,50,000/- Indexed cost of acquisition for the year under consideration(7,50,000X785/480): Rs.12,26,563/- Assessee’s share of sale consideration : Rs.25,00,000/- Capital Gain : Rs.12,73,438/- 3. The AO treated the Capital Gain, as worked out above, as the undisclosed income and added the same to the income of the assessee. The AO completed the assessment under section 147/144 of the Act, computing the income of the assessee as under: Income as per ITR : Rs.3,30,110/- Addition on account of Capital Gain : Rs.12,73,438/- Total income : Rs.16,03,548/- ITA No.327/LKW/2023 Page 3 of 6 4. Aggrieved, the assessee preferred an appeal before the NFAC. However, the appeal before the NFAC came to be dismissed. 5. Now, the assessee has approached this Tribunal challenging the dismissal of its appeal by the NFAC by raising the following grounds of appeal: 01. Because the Ld. CIT (A) has failed to know about the facts and circumstances of the case, and has arbitrarily give the decision thereof is bad in law and liable to set aside. 02. Because the Ld. CIT (A) has erred while not giving adequate opportunity of being heard like thereof is bad in law and against the Principle of Natural Justice \"Audi Alteram Partem\" of Constitution of India. 03. Because the Assesses financial condition is very poor that's why the assessee does not hire the proper council, since requested to you please set aside the case. 04. Because the appellant craves leave to add to or alter, by deletion, substitution, modification or otherwise, the above grounds of appeals, either before or during the hearing of the appeal. 6. During the course of hearing, it was brought to my notice that there is a delay of 599 days in filing the appeal before the Tribunal. The assessee has filed an application dated 18.10.2023 for condonation of delay, duly supported by an Affidavit and Medical Certificates, stating therein that the ITA No.327/LKW/2023 Page 4 of 6 mother-in-law of the assessee and assessee herself were suffering from various diseases for a long period and, therefore, the appeal could not be filed before the Tribunal within the stipulated time. In support of her claim, the assessee had filed an Affidavit and also Medical Certificates issued by Primus Medicare, Lucknow and Divine Heart & Multispecialty Hospital, Lucknow. The prayer of the assessee was that the delay caused in filing the appeal was not deliberate and that it was beyond the control of the assessee, which may please be condoned and the appeal be heard on merits. 7. The Ld. Sr. D.R. had no objection to the delay being condoned. 8. In view of the prayer made by the Assessee, duly supported by Affidavit, Medical Certificates and no objection by the Ld. Sr. D.R., I condone the delay in filing of the appeal and admit the appeal for hearing. 9. None was present for the assessee when the appeal was called out for hearing nor was any adjournment application received in this regard. However, looking into the facts of the case, I proceed to adjudicate the appeal ex-parte qua the assessee. ITA No.327/LKW/2023 Page 5 of 6 10. The Ld. Senior D.R. had no objection to the restoration of appeal to the file of the Assessing Officer. 11. I have heard the Ld. Senior Departmental Representative and have also perused the material on record. The AO in his order had observed that the assessee had not provided any documentary evidence to support her claim. The NFAC too, vide paragraph 4.3 of its order observed that the assessee chose not to furnish any document or explanation in respect of purchase and sale of the property before the AO and that the assessee had not furnished any explanation or document in respect of Long Term Capital Gain of Rs.12,73,438/- before the AO or during the appellate proceedings. Looking into these facts of the case, I am of the considered view that the Assessee deserves one more opportunity to present her case and, therefore, I restore this file to the Office of the Assessing Officer with the direction to provide one more opportunity to the Assessee to present her case and produce the necessary evidences/documents in support of the transactions entered into by the Assessee. I also caution the Assessee to fully comply with the directions of the Assessing Officer in the set-aside proceedings when called upon to do so, failing which, the Assessing Officer would be at complete liberty to pass the order ITA No.327/LKW/2023 Page 6 of 6 in accordance with law, based on the material available on record even if it is ex-parte qua the assessee. 12. In the result, the appeal of the assessee stands allowed for statistical purposes. Order pronounced in the open Court on 25/04/2025. Sd/- [SUDHANSHU SRIVASTAVA] JUDICIAL MEMBER DATED:25/04/2025 JJ: Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR By order Assistant Registrar "