GIRISH CHAND, Bulandshahr V. ITO, WARD- 3(1), Bulandshahr

ITA 1501/DEL/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0013 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 01-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Capital asset; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.1501/DEL./2018 ASSESSMENT YEAR 2009-2010 SHRI GIRISH CHAND, S/O. LATE MOHAR SINGH, 158, SUSHILA VIHAR, DELHI ROAD, BHOOR, BULANDSHAHR 203001.PAN AEJPC8821L VS. THE INCOME TAX OFFICER, WARD-3(1), INCOME TAX OFFICE, TEACHERS COLONY, BULANDSHAHR 203 001. (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI RAKESH GUPTA AND SHRI SOMIL AGGARWAL, ADVOCATES. FOR REVENUE : SHRI S.L. ANURAGI, SR. D.R. DATE OF HEARING : 03 . 12 .2018 DATE OF PRONOUNCEMENT : 10 . 12 .2018 ORDER THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A), ALIGARH, DATED 15.11.2017, FOR THE A.Y. 2009-2010. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT IN THIS CASE AN AIR INFORMATION HAS BEEN RECEIVED THAT ASSESSEE HAS SOLD AN IMMOVABLE PROPERTY OF RS.31,07,000/-IN 2 ITA.NO.1501/DEL./2018 SHRI GIRISH CHAND, BULANDSHAHR. . ASSESSMENT YEAR UNDER APPEAL. THE PROPERTY WAS A COMMERCIAL PLOT, THEREFORE, CAPITAL GAIN ARISES ON THIS TRANSACTION. THE ASSESSEE DID NOT RESPOND TO ANY OF THE STATUTORY NOTICES, THEREFORE, A.O. COMPLETED LONG TERM CAPITAL GAINS ON THE BASIS OF MATERIAL ON RECORD AND MADE THE ADDITION OF RS.31,07,000/- VIDE EX-PARTE ASSESSMENT ORDER UNDER SECTION 144/147 OF THE I.T. ACT, 1961, DATED 30.11.2016. THE LD. CIT(A) NOTED THAT THE CASE WAS FIXED ON 06.11.2017. HOWEVER, NONE APPEARED BEFORE HIM AND AN ADJOURNMENT APPLICATION WAS RECEIVED. THE LD. CIT(A) IN THE ABSENCE OF ANY EVIDENCE ON RECORD, CONFIRMED THE ADDITION ON ACCOUNT OF CAPITAL GAINS. FURTHER, THE A.O. WAS DIRECTED TO TAKE COGNIZANCE OF THE RETURN OF INCOME FILED BY ASSESSEE ON 22.03.2011 IN A SUM OF RS.13,68,000/-. A.O. WAS ALSO DIRECTED TO TAKE INTO CONSIDERATION THE INDEXED COST OF THE CAPITAL ASSET. 3. I HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES. 3 ITA.NO.1501/DEL./2018 SHRI GIRISH CHAND, BULANDSHAHR. . 4. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT WHEN ASSESSMENT PROCEEDINGS WERE GOING ON BEFORE A.O, ASSESSEE WAS IMPLICATED IN A CRIMINAL CASE UNDER SECTION 498A/304B OF IPC AND WAS IN JAIL SINCE 02.04.2016. HE WAS RELEASED ON BAIL BY THE HONBLE HIGH COURT VIDE ORDER DATED 01.06.2016. COPY OF THE JUDGMENT OF THE HONBLE HIGH COURT IS PLACED ON RECORD. HE HAS, THEREFORE, SUBMITTED THAT DUE TO THE ABOVE REASON, ASSESSEE COULD NOT MAKE COMPLIANCE BEFORE A.O. HE HAS FURTHER SUBMITTED THAT THE LD. CIT(A) NOTED IN THE APPELLATE ORDER THAT CASE WAS FIXED ON 06.11.2017 AND IN THE ABSENCE OF ASSESSEE, APPEAL WAS DECIDED EX-PARTE ON 15.11.2017. THE LD. CIT(A) ALSO NOTED THAT ON THE DATE OF HEARING ON 06.11.2017, ADJOURNMENT APPLICATION WAS RECEIVED, BUT, WITHOUT DECIDING THE SAME, THE APPEAL HAVE BEEN DECIDED EX-PATE. HE HAS FILED COPY OF THE TRACK RECORD OF POSTAL DEPARTMENT TO SHOW THAT NOTICE ISSUED BY THE LD. CIT(A) FOR 06.11.2017 HAVE BEEN DELIVERED TO THE ASSESSEE ONLY ON 06.11.2017. HE HAS, THEREFORE, SUBMITTED THAT NO PROPER 4 ITA.NO.1501/DEL./2018 SHRI GIRISH CHAND, BULANDSHAHR. . OPPORTUNITY HAVE BEEN GIVEN BEFORE LD. CIT(A) TO REPRESENT THE CASE. HE HAS, THEREFORE, SUBMITTED THAT IN VIEW OF THESE CIRCUMSTANCES MATTER MAY BE REMANDED TO A.O. FOR RECONSIDERATION. 5. LD. D.R. CONSIDERING THE EVIDENCE ON RECORD ALSO SUGGESTED THAT THE MATTER COULD BE REMANDED TO THE A.O. FOR RECONSIDERATION. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM OF THE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE A.O. THE ASSESSEE HAS BEEN ABLE TO EXPLAIN THAT WHEN RE- ASSESSMENT PROCEEDINGS WERE GOING ON BEFORE A.O, ASSESSEE WAS IMPLICATED IN A CRIMINAL CASE AND WAS IN JAIL SINCE 02.04.2016. HE WAS LATER ON RELEASED ON BAIL BY THE JUDGMENT OF THE HONBLE HIGH COURT DATED 01.06.2016. FURTHER, THE TRACK RECORD OF POSTAL DEPARTMENT SHOWS THAT NOTICE HAVE BEEN DELIVERED TO THE ASSESSEE BY THE O/O. LD. CIT(A) ON 06.11.2017 ONLY WHEN THE DATE OF HEARING OF THE APPEAL WAS FIXED ON 06.11.2017. THE LD. CIT(A) ALSO NOTED IN THE APPELLATE ORDER 5 ITA.NO.1501/DEL./2018 SHRI GIRISH CHAND, BULANDSHAHR. . THAT FOR 06.11.2017 ADJOURNMENT HAVE BEEN RECEIVED BUT NOTHING HAVE BEEN DECIDED ON THE SAME. THESE FACTS, THEREFORE, SHOWS THAT NO REASONABLE AND PROPER OPPORTUNITY HAVE BEEN GIVEN TO THE ASSESSEE TO REPRESENT THE CASE BEFORE THE AUTHORITIES BELOW. THERE WERE SUFFICIENT REASONS FOR ASSESSEE TO SHOW THAT THE MATTER REQUIRES RE-CONSIDERATION. IN THIS VIEW OF THE MATTER, I SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER IN ISSUE TO THE FILE OF A.O. WITH A DIRECTION O RE-FRAME THE RE-ASSESSMENT ORDER IN ACCORDANCE WITH LAW, BY GIVING REASONABLE, SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. LEARNED COUNSEL FOR THE ASSESSEE ALSO MOVED AN APPLICATION FOR ADMISSION OF THE ADDITIONAL GROUND CHALLENGING THE REOPENING OF THE ASSESSMENT. SINCE THE MATTER IS RESTORED TO THE FILE OF A.O, THEREFORE, ASSESSEE IS AT LIBERTY TO AGITATE ALL LEGAL REMEDIES BEFORE A.O. IN ACCORDANCE WITH LAW. THERE IS NO NEED TO ADJUDICATE UPON THE ADDITIONAL GROUND OF APPEAL. ACCORDINGLY, APPEAL OF ASSESSEE IS ALLOWED. 6 ITA.NO.1501/DEL./2018 SHRI GIRISH CHAND, BULANDSHAHR. . 7. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) DELHI, DATED 10 TH DECEMBER, 2018 JUDICIAL MEMBER VBP/- COPY TO 1. THE APP ELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.