Shaileshkumar Dashrathbhai Patel, Ahmedabad V. ITO, Ward-3(2)(5), Ahmedabad

ITA 1588/AHD/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3060 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 25-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD (CONDUCTING THROUGH VIRTUAL COURT) BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO.1588/AHD/2018 (ASSESSMENT YEAR: 2010-11) SHAILESHKUMAR DASHRATHBHAI PATEL 53, TULSI VILLA, STR CITY, NR. SHIVASHISH SCHOOL, BOPAL, AHMEDABAD-380058 VS. ITO WARD-3(2)(5) AHMEDABAD [PAN NO. AXYPP3975C] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : NONE RESPONDENT BY: SHRI PURUSHOTTAM KUMAR, SR. DR DATE OF HEARING: 05/10/2021 DATE OF PRONOUNCEMENT: 25/10/2021 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 14.05.2018 PASSED BY THE LD. CIT(A)-3, AHMEDABAD AR ISING OUT OF THE ORDER DATED 05.12.2017 PASSED BY THE ITO, WARD-3(2)(5), AHMEDAB AD UNDER SECTION 144 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO T HE ACT) FOR A.Y. 2010-11. 2. WE HAVE HEARD THE PARTIES, AND PERUSED THE RELEV ANT MATERIALS AVAILABLE ON RECORD. 3. IT APPEARS THAT BEFORE THE LD. AO THE ASSESSEE H AS NOT COMPLIED IN SPITE OF BEING SERVED WITH NUMBER OF NOTICES. ULTIMATELY SALE CON SIDERATION OF THE LAND TO THE TUNE OF RS. 20,55,000/- HAS BEEN TREATED AS INCOME FOR THE YEAR UNDER CONSIDERATION IN THE ABSENCE OF ANY DETAILS AND/OR DOCUMENT MADE AVAILAB LE BY THE ASSESSEE BEFORE HIM WHICH WAS, IN TURN, AFFIRMED BY THE LD. CIT(A). ADDITION ALLY THE LD. AO WAS OF THE OPINION THAT THE APPELLANT FAILED TO DISCLOSE INCOME OF THI S TRANSACTION FOR PLOTS FALLING AS WITHIN TWO KILOMETERS LIMIT FROM THE OUTER LIMIT OF SANAND MUNICIPALITY. THE VALIDITY OF THE - 2 - ITA NO.1588/AHD/2018 SHAILESHKUMAR DASHRATHBHAI PATEL VS. IT O A.Y. 2010-11 NOTICE ISSUED UNDER SECTION 148 DATED 29.03.2017 HA S BEEN UPHELD BY THE LD. CIT(A) ON MERIT. 4. WHEN THE MATTER WAS TAKEN UP BY US NONE APPEARED ON BEHALF OF THE ASSESSEE, NEITHER ANY ADJOURNMENT WAS SOUGHT FOR. IT APPEARS THAT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL ON TECHNICAL GROUND. HOWEVER, THE LD. A O MADE ADDITION ON THE ENTIRE SALE CONSIDERATION; SUCH ORDER WAS PASSED EX-PARTE SINCE NO COMPLIANCE WAS MADE BY THE ASSESSEE. HOWEVER, THE ADDITION COULD HAVE BEEN MA DE BY THE LD. AO ONLY ON THE CAPITAL GAIN EARNED BY THE ASSESSEE. IT FURTHER APPEARS FROM THE IMPUGNED ORDER THAT TH E APPELLANT HAS NOT AGITATED THE ISSUE ON MERIT BEFORE THE LD. CIT(A) AGAINST THE OR DER OF ADDITION MADE BY THE LD. AO. BEFORE US THE APPELLANT HAS PRESSED THE ISSUE ON ME RIT TOO. SINCE THE MERIT OF THE MATTER HAS NOT BEEN DECIDED BY THE LD. CIT(A) IT WOULD BE THE FAIR TO SET ASIDE THE ISSUE TO THE FILE OF THE AUTHORITIES BELOW. AS WE FIND THAT THE ORDER OF ADDITIONS MADE BY THE LD. AO IS AN EX-PARTE ONE AND THE FULL FACT ORDER ON THE BASIS OF DETERMINATION OF CAPITAL EARNED BY THE ASSESSEE HAS NOT BEEN VERIFIED AT THE LEVEL OF AO, WE FIND IT FIT AND PROPER TO SET ASIDE THE ISSUE TO THE FILE OF THE LD. AO TO RECONSIDER THE SAME UPON GIVING AN OPPORTUNITY OF HEARING TO THE A SSESSEE AND TO PASS A REASONED ORDERS IN ACCORDANCE WITH LAW IN VIEW OF THE OBSERVATION M ADE HEREINABOVE. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER PRONOUNCED IN OPEN COURT ON 25/10/2021 SD/- SD/- (AMARJIT SINGH) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25/10/2021 TANMAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. - 3 - ITA NO.1588/AHD/2018 SHAILESHKUMAR DASHRATHBHAI PATEL VS. IT O A.Y. 2010-11 3. / CONCERNED CIT 4. ( ) / THE PCIT- AHMEDABAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 05.10.2021 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05.10.2021 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 06.10.2021 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.25.10.21 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25 .10.2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER