Vijay Shukla, Ghaziabad V. ITO ward -2(5), Noida

ITA 1222/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4471 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 15-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JAGDISH SINGH
• Keywords: Principle of natural justice
• Section: 143(2); 148; 54

Judgement Text

1 ITA NO. 1222/DEL/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: I(2 ) + SMC NEW DELHI BEFORE MS SUCHITRA KAMBLE, JUDICIAL MEM BER, AND SHRI PRASHANT MAHARISHI, ACCOU NTANT MEMBER ITA NO. 1222/DEL/2019 ( A.Y 2010-11) VIJAY SHUKLA B-4/5, RAIL VIHAR, INDIRAPURAM GHAZIABAD UTTAR PRADESH AAGPS2917L (APPELLANT) VS ITO WARD-2(5) AAYAKAR BHAVAN A2D SECTOR-24, NOIDA, UTTAR PRADESH (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. JAGDISH SINGH, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER DATED 29/6/2018 PASSED BY CIT(A)-1, NOIDA, FOR ASSESSMENT YEAR 2010 -11. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- 1. THAT IN FACTS AND CIRCUMSTANCES OF THE CASE THE LD . AO HAS ERRED IN LAW IN COMPLETING THE ASSESSMENT U/S 148 OF IT ACT, 1961 B Y MAKING THE ADDITION OF RS. 9,37,500/- IN THE HANDS OF THE APPELLANT WITHOU T ISSUING NOTICE U/S 143(2) OF IT ACT, 1961 WHICH IS SINE QUA NON UNDER ASSESSM ENT U/S 148 OF THE IT ACT, 1961 WHICH BRINGS THE ENTIRE ASSESSMENT TO NUL LITY. 2. WHETHER THE HONBLE CIT (A)-1, NOIDA WAS RIGHT IN DISMISSING THE APPEAL OF THE ASSESSEE MENTIONING THAT NO APPEARANCE HAS BEEN MADE AND THEREFORE DATE OF HEARING 24.02.2020 DATE OF PRONOUNCEMENT 26 .02.2020 2 ITA NO. 1222/DEL/2019 APPEAL HAS BEEN DECIDED ON THE BASIS OF RECORDS AVA ILABLE WHEREAS AS PER THE ORDER SHEET THE ASSESSEE THROUGH HIS AUTHORIZED REP RESENTATIVE MADE APPEARANCE ON 22.06.2018 AND DISCUSSED THE CASE WIT H HONBLE CIT (A) WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 3. WHETHER THE HONBLE CIT (A)-1, NOIDA WAS RIGHT IN DISMISSING THE APPEAL OF THE ASSESSEE FOR WANT OF PROPER COMPLIANCE OF SECTI ON 249(4) OF IT ACT, 1961 IGNORING THE FACT THAT WHILE FILING THE FACTS OF TH E CASE, ASSESSEE HAS CLEARLY MENTIONED THAT THE ASSESSEE HAS BELOW TAXABLE LIMIT INCOME AND DUE TO THIS REASON THE ASSESSEE HAS NOT FILED HIS ITR FOR THE A SSESSMENT YEAR. THE PRESUMPTION TAKEN BY HONBLE CIT(A)-1 NOIDA FOR REQ UIREMENT OF COMPLIANCE U/S 249(4) OF IT ACT, 1961 IS DEVOID OF MERITS AND HENCE THE SAME IS LIABLE TO BE REVERSED. 4. WHETHER THE HONBLE CIT (A)-1, NOIDA WAS RIGHT IN DISMISSING THE APPEAL OF THE ASSESSEE FOR WANT OF PROPER COMPLIANCE OF SECTI ON 249(4) OF IT ACT, 1961 WITHOUT GIVING ANY SHOW CAUSE NOTICE TO THE ASSESSE E, WITHOUT INFORMING THE ASSESSEE DURING THE PERSONAL HEARING AND BY DENYING THE ADMISSION OF APPEAL U/S 249(4) AFTER ISSUING THE NOTICE FOR HEAR ING AND ALLOWING THE ASSESSEE FOR PERSONAL HEARING ON MERITS OF THE CASE WHICH IN ITSELF IS TO BE CONSIDERED AS ADMISSION OF APPEAL WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE AND ILLEGAL IN LAW. 5. WHETHER THE HONBLE CIT (A)-1, NOIDA WAS RIGHT IN DISMISSING THE APPEAL OF THE ASSESSEE WITHOUT TAKING ANY COGNIZANCE OF THE S UBMISSION MADE IN FACTS OF THE CASE ALONG WITH DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE AT THE TIME OF FILING OF THE APPEAL IN FORM 35 OF IT ACT, 1961 WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 6. WHETHER, THE HONBLE CIT (A) WAS RIGHT IN DENYING THE BENEFITS OF SECTION 54 OF THE INCOME TAX ACT, 1961 WITHOUT CONSIDERING THE DETAILS AS PROVIDED IN FACTS OF THE CASE ALONG WITH DOCUMENTARY EVIDENCES AT THE TIME OF FILING OF THE 3 ITA NO. 1222/DEL/2019 APPEAL IN FORM 35 OF IT ACT, 1961 WHICH IS AGAINST THE PRINCIPLE OF NATURAL JUSTICE. 3. THE ASSESSEE PURCHASED A FLAT FROM SUPERTECH LTD . BUILDER AFTER SELLING OUT OF THE SAID CAPITAL PROPERTY FOR RS.22,50,000/- + STAMP DUTY ON 6/6/210 AND PAYMENT WAS MADE FOR RS. 21,37,500/- ON DIFFERE NT DATES. THE DETAILS OF THE PAYMENTS RECEIPTS AND CONFIRMATION LETTER GIVEN BY THE SUPERTECH LTD. WAS SUBMITTED BEFORE THE ASSESSING OFFICER ALONG WITH C ALCULATION OF CAPITAL GAIN/LOSS. THE ASSESSEE DID NOT RECEIVE ANY NOTICE SENT BY THE ASSESSING OFFICER AS PER THE CONTENTIONS OF THE ASSESSEE BEFO RE THE CIT(A) AND, THEREFORE, COULD NOT APPEAR BEFORE THE ASSESSING OFFICER. THE ASSESSMENT ORDER WAS PASSED U/S 144/147 OF THE INCOME TAX ACT, 1961 BY M AKING AN ADDITION OF RS. 9,37,500/- UNDER THE HEAD LONG TERM CAPITAL GAIN. 4. BEING AGGRIEVED BY THE ASSESSMENT ORDER, THE ASS ESSEE FILED APPEAL BEFORE THE CIT(A). THE CIT(A) DISMISSED THE APPEAL OF TH E ASSESSEE HOLDING THAT THE PRESENT APPEAL CANNOT BE ADMITTED FOR WANT OF JURIS DICTION. 5. AT THE TIME OF HEARING, NONE APPEARED FOR THE AS SESSEE AND THERE IS NO APPLICATION FOR ADJOURNMENT. THE NOTICE HAS BEEN D ULY SERVED TO THE ASSESSEE. THEREFORE, WE ARE PROCEEDING ON THE BASIS OF THE SU BMISSIONS MADE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AS WELL AS BE FORE THE CIT(A). 6. THE LD. DR RELIED UPON THE ASSESSMENT ORDER AND THE ORDER OF THE CIT(A). 7. WE HAVE HEARD THE LD. DR AND PERUSED THE MATERIA L AVAILABLE ON RECORD. IT CAN BE SEEN FROM THE PERUSAL OF THE ORDER OF THE CIT(A) THAT THE CIT(A) HAS NOT GIVEN A CATEGORICAL FINDING ON THE MERIT OF THE CASE AND SIMPLY DISMISSED THE APPEAL ON THE GROUND OF WANT OF JURISDICTION. HENCE, WE ARE REMANDING BACK THE ENTIRE ISSUES TO THE FILE OF THE CIT(A) TO BE DECIDED ON MERIT. NEEDLESS TO SAY, THE ASSESSEE BE GIVEN OPPORTUNITY OF HEARIN G BY FOLLOWING PRINCIPLES OF 4 ITA NO. 1222/DEL/2019 NATURAL JUSTICE. THE APPEAL OF THE ASSESSEE IS PART LY ALLOWED FOR STATISTICAL PURPOSE. 8. IN RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH FEBRU ARY, 2020. SD/- SD/- (PRASHANT MAHARISHI) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26/02/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 5 ITA NO. 1222/DEL/2019 DATE OF DICTATION 2 5 .0 2 .2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25.0 2 .2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 26.02.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 26.02.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 26.02.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER