Shri Jayendra Pratap Singh, Basti V. ACIT, Circle, Gonda

ITA 148/LKW/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 5940 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s) 5 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 19-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Opportunity of being heard; Set aside; Capital Gains
• Section: 143(3)

Judgement Text

I.T.A. No.148/Lkw/2020 Assessment year:2013-14 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘SMC’, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA No.148/Lkw/2020 Assessment year:2013-14 Shri Jayendra Pratap Singh, Prop. M/s Pratap Rice Mill, Asha Kutir, Sadar Block Road, Gandhi Nagar, Basti. PAN:ANFPS9806C Vs. A.C.I.T., Circle-Gonda (Appellant) (Respondent) O R D E R This is an appeal filed by the assessee against the order of learned CIT(A) dated 28/11/2029. In this appeal the assessee has taken the following grounds: “1. Because the CIT(A) has on facts and in law in arbitrarily dismissing the appeal ex-parte without giving adequate opportunity, the order passed is bad in law and be quashed. 2. Because the CIT(A) was not in office on the date fixed, i.e., 21.11.2019 and the assessee having put an appearance, was informed that the next date would be intimated, the order passed dismissing the appeal ex-parte is bad in law and be quashed. Appellant by Shri Rakesh Garg, Advocate Respondent by Shri Harish Gidwani, D. R. Date of hearing 08/08/2022 Date of pronouncement 18/08/2022 I.T.A. No.148/Lkw/2020 Assessment year:2013-14 2 3. Because on a proper consideration of facts and circumstances of the case, the CIT(A) has erred on facts and in law in upholding the addition of Rs.15,08,417/- on account of long term capital gain, holding it to be non-genuine, the addition made and upheld, is contrary to facts be deleted. 4. Because the CIT(A) has failed to appreciate, that the amount of Rs.15.08,417/- being long term capital gains, arising on sale of shares, duly supported by necessary evidences, is income exempt under section 10(38) of the Act, there was no justification in disbelieving the explanation and the evidences, the addition made and upheld be deleted. 5. Because the CIT(A) has failed to appreciate, that the Assessing Officer had made independent inquiries and failure on the part of the person to respond to notice under section 133(6), cannot be construed as an evidence against the assessee, the addition made by the Assessing Officer and upheld by the CIT(A) is contrary to the provisions of law and be deleted. 6. Because complete evidence in respect of the purchase and sale of shares having been filed before the Assessing Officer, and also before the CIT(A) r the authorities were not justified in disbelieving the same and upholding the addition, the addition made be deleted.” 2. Learned counsel for the assessee, at the outset, submitted that there is a delay of two days in filing the appeal which might have happened due to postal delay and therefore, it was prayed that the same may be condoned and the appeal be heard on merits. Finding the reason of delay plausible, the delay was condoned and Learned counsel for the assessee was asked to proceed with his arguments. 3. Learned counsel for the assessee submitted that assessment in this case was completed u/s 143(3) and two additions for cash deposits and for holding the Long Term Capital Gain as bogus, claimed by the assessee, were made by the Assessing Officer and before the learned CIT(A) when the appeal was filed, the learned CIT(A) issued various notices and against few I.T.A. No.148/Lkw/2020 Assessment year:2013-14 3 of the notices the assessee did not appear and finally on 05/11/2019 the date was fixed for 21/11/2019 and when the assessee visited the office of learned CIT(A) on 21/11/2019 he was told that the next date of hearing will be intimated to him. However, the learned CIT(A) passed the ex-parte order against the assessee on 28/11/2019 dismissing the appeal of the assessee without deciding the issue on merits. Therefore, it was submitted that proper opportunity of hearing was not allowed to the assessee to explain his case. Explaining the facts of the case Learned counsel for the assessee submitted that the assessee has earned Long Term Capital Gain on shares for which necessary evidences were filed before the authorities below and now this is a covered issue in favour of the assessee in view of various orders passed by the Lucknow Bench of the Tribunal under similar facts and circumstances therefore, it was prayed that instead of remitting the matter back to the lower authorities, the appeal of the assessee may be decided on merits. 4. Learned D. R., on the other hand, objected to the arguments of the assessee for deciding the appeal at this level and submitted that most of the documents were not filed before the Assessing Officer and the documents contained in the paper book, filed before the learned CIT(A), were not before the Assessing Officer. Therefore, it was prayed that since learned CIT(A) has not adjudicated on merits, the appeal of the assessee may be set aside to learned CIT(A). 5. I have heard the rival parties and have gone through the material placed on record. I find that the assessee himself, vide ground No. 1 & 2, has argued that learned CIT(A) has passed the order ex-parte against the assessee without providing sufficient opportunity of being heard. I find that learned CIT(A) has not decided the issue on merits as the assessee also did I.T.A. No.148/Lkw/2020 Assessment year:2013-14 4 not co-operate with the proceeding before him. However, in the interest of justice, I deem it appropriate to remit the issue back to CIT(A) with a direction to adjudicate the issue on merits after providing sufficient opportunity of being heard to the assessee. The assessee is also directed to co-operate with the proceedings before learned CIT(A) so as to enable him to pass a fair and correct order. 6. In the result, the appeal of the assessee stands allowed for statistical purposes. (Order pronounced in the open court on 18/08/2022) Sd/. ( T. S. KAPOOR ) Accountant Member Dated:18/08/2022 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow Assistant Registrar