SMT. SHIVANI KHANDELWL, AJMER V. INCOME TAX OFFICER, WARD-1-2, AJMER

ITA 1387/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5275 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 04-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Period of limitation; Reasonable cause; Set aside
• Section: 50C

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1387/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2014-15 SMT. SHIVANI KHANDELWAL B-16 SAMARPAN HOUSING SOCIETY, TANDALJA VASNA ROAD, B/H SABRI VIDYALAYA NEW COMPLES, VADODARA- GUJARAT. CUKE VS. THE ITO, WARD-1(2), AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AZGPK 0147 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MUKESH KHANDELWAL (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. JAI SINGH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 13/05/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 15/05/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 27.09.2018 OF LD. CIT(A), AJMER FOR THE ASSESSMENT ORDER 2014-15. 2. THERE IS DELAY OF 4 DAYS IN FILING THE PRESENT A PPEAL. THE ASSESSEE HAS EXPLAINED THE DELAY IN THE APPLICATION FOR COND ONATION OF DELAY WHICH HAS BEEN SUPPORTED BY THE AFFIDAVIT OF THE AS SESSEE. ITA NO. 1387/JP/2018 SHIVANI KHANDELWAL VS. ITO 2 3. WE HAVE HEARD THE LD. AR AS WELL AS THE LD. DR AND CAREFULLY PERUSED THE CONTENTS OF THE AFFIDAVIT. THE ASSESEE HAS EXPLAINED THE CAUSE THAT SHE HAS PERMANENTLY SIFTED BARODA, GUJAR AT AND WAS NOT ABLE TO COLLECT THE NECESSARY DOCUMENTS AND TAKE STEPS T O FILE THE APPEAL BEFORE THE TRIBUNAL WITHIN THE PERIOD OF LIMITATION . THUS THERE WAS DELAY OF 4 DAYS FOR ARRANGING NECESSARY RECORD AND PREPAR ING THE APPEAL THROUGH CHARTERED ACCOUNTANT. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND THE CAUSE OF DELAY EXPLAINED BY THE ASSESSEE WE ARE SATISFY THAT THE ASSESSEE HAS EXPLAINED THE REASONABLE CAUSE FOR DELAY OF 4 DAYS IN FILING THE APPEAL. ACCORDINGLY, THE DELAY OF 4 DAYS IN FILING THE APPEAL IS CONDONED. 4. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASES AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN PASSING EX-PARTE ORDER. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASES AS W ELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN PASSING ORDER WITHOUT ACTUALLY GIVING OPPORTUNITY OF BEING HEARD AS STATED IN THE ORDER. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASES AS W ELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING ADDITION OF RS. 63,80,732/- U/S 56(2)(B) ON ACCOUNT OF STAMP DUTY VALUE OF FLAT. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASES AS W ELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ITA NO. 1387/JP/2018 SHIVANI KHANDELWAL VS. ITO 3 HAS ERRED IN CONFIRMING ADDITION OF RS. 4,00,000/- ON ACCOUNT OF INCOME FROM OTHER SOURCES. 5. APPELLANT CRAVES LEAVE TO ADD, ALTER OR DELETE A NY GROUND(S) EITHER BEFORE OR IN THE COURSE OF HEARING OF THE AP PEAL. 5. AT THE OUTSET, WE NOTE THAT VIDE ORDER DATED 12. 03.2018 THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE RECORD OF THE LD. CIT(A) FOR GRANTING ONE MORE OPPORTUNITY HEARING TO THE ASSESS EE. THE RELEVANT PART OF THE ORDER DATED 12.03.2018 HAS BEEN REDUCED BY THE LD. CIT(A) IN PARA 2 AS UNDER:- 2.0 THE ITAT, JAIPUR VIDE ORDER DATED 12.03.2018 ( ITA NO. 757/JP/2017), SET-ASIDE THE ISSUE IN GROUND NO. 1 T O THE RECORD OF THE CIT(A) FOR FRESH ADJUDICATION AFTER GIVING O NE MORE OPPORTUNITY TO THE ASSESSEE, SUBJECT TO COST OF RS. 10,000/-, OBSERVING AT PARA 5 AS UNDER:- 5 HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD AT THE OUTSET, WE NOTE THAT THE LD. CIT(A) HAS GRANTED NUMBER OF OPPORTUNITY TO THE ASSESSEE FOR A TTENDING THE HEARING AS RECORDED IN PARA 3 OF THE IMPUGNED ORDER AS UNDER:- 3.0 DURING THE COURSE OF APPELLATE PROCEEDINGS, TH E APPEAL WAS FIXED FOR HEARING ON 27.04.2017,17.05.2017,05.06.20 17, 19.06.2017, 04.07.2017 AND 18.07.2017. NO ONE HAS A TTENDED ON ANY OF THE DATE OF HEARING AND NO WRITTEN SUBMISSIO N HAS BEEN FILED. THEREFORE, THE APPEAL IS DECIDED AFTER GOING THROUGH THE ASSESSMENT ORDER AND GROUNDS OF APPEAL AS UNDER. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS MATTER I S THE ADOPTION OF THE VALUE OF THE FLAT U/S 50C OF THE ACT AND CON SEQUENTIAL ADDITION U/S 56(2)(B) OF THE ACT. HOWEVER, WE NOTE THAT ONCE THE ASSESSEE HAS FILED THE APPEAL BEFORE THE LD. CIT(A) THE ASSESSEE CANNOT TAKE A PLEA OF SHIFTING HIS RESIDENCE FROM AJMER TO ITA NO. 1387/JP/2018 SHIVANI KHANDELWAL VS. ITO 4 BADODRA FOR NON APPEARANCE BEFORE THE LD. CIT(A). THUS, IT IS A CLEAR CASE OF CAUSAL AND NEGLIGENT CONDUCT OF THE A SSESSEE FOR NOT PURSUING THE APPEAR AND APPEARING BEFORE THE LD. CI T(A) AFTER FILING THE APPEAL. WE FURTHER NOTE THAT THE ASSESSE E IN THE WRITTEN SUBMISSIONS AS REPRODUCED BY THE ASSESSING OFFICER RAISED THE OBJECTION AGAINST THE ADOPTION OF VALUE AS DETERMIN ED BY THE STAMP DUTY VALUATION AUTHORITY AS PER PROVISIONS OF SECTION 50C AND CONSEQUENTIAL ADDITION U/S 56(2)(B) OF THE ACT THOUGH NO SPECIFIC REQUEST WAS MADE BY THE ASSESSEE FOR REFER ENCE OF THE MATTER TO THE DVO. ACCORDINGLY, IN THE FACTS AND CI RCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE SET ASI DE THE ISSUE IN GROUND NO. 1 TO THE RECORD OF THE LD. CIT(A) FOR FR ESH ADJUDICATION AFTER GIVING ONE MORE OPPORTUNITIES TO THE ASSESSEE SUBJECT TO COST OF RS. 10,000/-. WE MAKE IT CLEAR THAT THE OPP ORTUNITY GRANTED BY US SHALL STAND VACATED IN CASE THE ASSES SEE FAILS TO APPEAR BEFORE THE LD. CIT(A) IN THE REMAND PROCEEDI NG. THE LD. CIT(A) DISMISSED THE APPEAL WHEN NOBODY HAS APPEARED ON BEHALF OF THE ASSESSEE IN SET ASIDE PROCEEDING. WE FIND THAT THE APPEAL OF THE ASSESSEE WAS AGAIN DISMISSED IN SUMMARY FOR WANT OF ANY WRITTEN SUBMISSION OR APPEARING ON BEHALF OF THE AS SESSEE. THE LD. AR HAS SUBMITTED THAT THE LD. CIT(A) HAS ISSUED NOTICE TO THE ASSESSEE AT THE OLD ADDRESS OF AJMER WHEREAS THE ASSESSEE HAS A LREADY EXPLAINED IN THE FIRST ROUND OF APPEAL THAT SHE HAS PERMANENTLY SIFTED TO BARODA, GUJARAT THEREFORE, DUE TO NON RECEIPT OF NOTICE ISS UED BY THE LD. CIT(A) THE ASSESSEE COULD NOT CAUSE PRESENCE BEFORE THE LD . CIT(A). HE HAS ITA NO. 1387/JP/2018 SHIVANI KHANDELWAL VS. ITO 5 FILED AN AFFIDAVIT OF THE ASSESSEE TO EXPLAIN THE R EASONS FOR NOT ATTENDING BEFORE THE LD. CIT(A). 6. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT DES PITE THE OPPORTUNITY GIVEN BY THE TRIBUNAL IN THE FIRST ROUN D OF APPEAL THAT TOO SUBJECT TO COST OF RS. 10,000/- THE ASSESSEE AGAIN DID NOT ATTEND THE HEARING BEFORE THE LD. CIT(A). 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD WE NOTE THAT IN THE EARLIER ROUN D OF APPEAL THE TRIBUNAL AFTER CONSIDERING THE EXPLANATION OF THE A SSESSEE FOR NON APPEARANCE BEFORE THE LD. CIT(A) DUE TO CHANGE OF A DDRESS AS THE ASSESSEE SHIFTED FROM AJMER RAJASTHAN TO BARODA, GU JARAT THE MATTER WAS SET ASIDE TO THE RECORD OF THE LD. CIT(A) FOR G RANTING ONE MORE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE LD. CIT (A) IN THE IMPUGNED ORDER AGAIN MENTIONED THE OLD ADDRESS OF THE ASSESS EE OF AJMER, RAJASTHAN AND THEREFORE, IT IS APPARENT THAT THE NO TICES ISSUED BY THE LD. CIT(A) IN THE SET ASIDE PROCEEDING WERE NOT RECEIVE D BY THE ASSESSEE DUE TO THE REASONS THAT SHE HAS ALREADY SHIFTED TO BARODA, GUJARAT. IT APPEARS THAT DUE TO NON AVAILABILITY OF THE CURRENT ADDRESS BEFORE THE LD. CIT(A) THE NOTICE WAS AGAIN ISSUED AS THE OLD ADDRE SS. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE WE ITA NO. 1387/JP/2018 SHIVANI KHANDELWAL VS. ITO 6 AGAIN SET ASIDE THE MATTER TO THE RECORD OF THE LD. CIT(A) FOR GRANTING OPPORTUNITY OF HEARING TO THE ASSESSEE. THE CURRENT /FRESH ADDRESS OF THE ASSESSEE IS BEING GIVEN IN THIS ORDER IN THE MEMO O F PARTIES AND THE ASSESSEE IS ALSO DIRECTED TO APPEAR BEFORE THE LD. CIT(A) ALONG WITH A COPY OF THIS ORDER WITHIN A PERIOD OF TWO MONTHS FR OM THE DATE OF THIS ORDER. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 15/05/2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15/05/2019. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. SHIVANI KHANDELWAL, VADADARA. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-1(2), AJMER. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1387/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR