Avantha Realty Ltd. (Previously Known as Venue Financial Service Limited), Haryana V. DCIT, Circle 17(1), Delhi

ITA 162/DEL/2022

AI Insights

The case involves Avantha Realty Ltd., previously known as Venus Financial Services Ltd., appealing against the order of the Commissioner of Income-tax (Appeals) dated 30/07/2020 for the assessment year 2010-11. The primary contention was the violation of the principles of natural justice, as the assessee was not provided a reasonable opportunity to be heard due to the COVID-19 pandemic and associated lockdowns. Additionally, the appeal challenged the assessment order passed on an amalgamating company that no longer existed at the time of the assessment, and the treatment of income from transactions in listed shares as income from speculation business rather than capital gains. The Tribunal found merit in the assessee's argument regarding the lack of a proper hearing opportunity and remanded the case for a fresh assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 108522 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-05-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: A
• Next Hearing Date: 29-05-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 27-01-2022
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside; Capital Gains
• Section: 43(5); 73

Judgement Text

1 ITA No. 162/Del/2022 Avantha Realty Ltd. Vs. DCIT IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH: ‘A’ NEW DELHI ] BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER I.T.A. No. 162/DEL/2022 (A. Y 2010-11) Avantha Realty Limited (Previously known as Venus Financial Services Ltd.) G.F, Vatika First India Place, MG Road, Gurgaon, Haryana PAN:AAACJ8030A ( APPELLANT ) Vs. DCIT Circle 17(1) C.R. Building, Delhi ( RESPONDENT ) ORDER PER YOGESH KUMAR U.S., JM This appeal is filed by the assessee against the order dated 30/07/2020 passed by the Office of the P Commissioner of Income Tax Appeals (hereinafter referred to ‘CIT(A)’)- New Delhi for assessment year 2010-11. Assessee by : Shri Upvan Gupta, Adv Department by: Shri Kanv Bali, Sr. DR Date of Hearing 30.05.2023 Date of Pronouncement 31.05.2023 2 ITA No. 162/Del/2022 Avantha Realty Ltd. Vs. DCIT 2. The assessee has raised the following grounds of appeal :- “ 1. That on the facts and in the circumstances of the case, the Commissioner of Income-tax (Appeals) 11, New Delhi ['CIT(A)'] grossly erred in passing the impugned appellate order in complete contravention of the principles of natural justice, i.e., without providing a reasonable and proper opportunity of being heard to the assessee. 1.1 That on the facts and in the circumstances of the case, the CIT(A) grossly erred in passing the impugned appellate order without appreciating that, on the date fixed for hearing, i.c., 30.03.2020, a country wide lockdown imposed by the Government of India was in operation and the assessee was sufficiently prevented from appearing for the said hearing before the CIT(A). 1.2 That on the facts and in the circumstances of the case, the CIT(A) grossly erred in passing the impugned appellate order during the period of COVID-19 pandemic hugely prevailing in Delhi NCR area, i.e., on 30.07.2020 and without giving a physical/ virtual/ online opportunity of being heard to the assessee. 1.3 That on the facts and in the circumstances of the case, the CIT(A) grossly erred in passing the impugned appellate order without appreciating that the assessee, for reasons beyond its control, was unable to avail the opportunity of appearing and representing the case on 30.03.2020 and subsequently, no other opportunity of being heard was provided to the assessee. 3 ITA No. 162/Del/2022 Avantha Realty Ltd. Vs. DCIT 1.4 That on the facts and in the circumstances of the case, the CIT(A) grossly erred in passing the impugned appellate order without appreciating that the buildings of Income-tax Department in New Delhi were not open for general public/ assessee/ authorized representative from 25.03.2020 to 31.08.2020. 1.5 That on the facts and in the circumstances of the case, the CIT(A) grossly erred in passing the impugned appellate order without appreciating that the corporate office of assessee was closed from 25.03.2020 to 31.08.2020 due to COVID-19 pandemic situation prevailing in Delhi NCR area and the tax team of assessee was not available in office at the relevant time. 2. That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the action of the assessing officer in passing the assessment order for the relevant Assessment year upon an amalgamating company, which was not in existence on the date of passing of the said assessment order. 2.1. That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the aforesaid action of the assessing officer, without appreciating that the amalgamating company upon which assessment order was passed by the assessing officer on 01.03.2013 had already amalgamated on 18.10.2011 with effect from 01.04.2010 vide the order of the Hon’ble Delhi High Court. 4 ITA No. 162/Del/2022 Avantha Realty Ltd. Vs. DCIT 2.2. That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the aforesaid action of the assessing officer, without appreciating that the assessment order passed by the assessing officer in the present matter was void ab initio and illegal in nature. 3. That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the action of the assessing officer in treating income from transactions in listed shares on account of long term capital gains of INR 1,07,11,187 and short term capital gains of INR 4,65,13,254 as income from speculation business. 3.1. `That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the aforesaid action of the assessing officer undertaken by resorting to the provisions of section 43(5) and Explanation to section 73 of the Income-tax Act, 1961 (‘the Act’). 3.2. That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the aforesaid action of the assessing officer, without appreciating that the provisions of section 43(5) of the Act were not applicable in the present matter, since actual delivery of shares was involved. 3.3. That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the aforesaid action of the assessing officer, without appreciating that the assessee was not dealing in share derivatives. 5 ITA No. 162/Del/2022 Avantha Realty Ltd. Vs. DCIT 3.4. That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the aforesaid action of the assessing officer, without appreciating that the share investments under consideration were consistently and regularly disclosed by assessee as investments in the books of accounts and not as stock in trade. 3.5. That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the aforesaid action of the assessing officer, without appreciating that the treatment afforded by assessee to share investment as investment in books of accounts was accepted by the Income- tax Department as well consistently and regularly from assessment years 2006-07 to 2009-10. 3.6. That on the facts and in the circumstances of the case and in law, the CIT(A) grossly erred in confirming the aforesaid action of the assessing officer, without appreciating that the treatment afforded by assessee to income from share investment as capital gains in books of accounts was accepted by the Income-tax.” 3. Brief facts of the case are that the assessee filed return of income declaring total income of Rs. 4,70,24,633/-. The assessment order came to be passed on 01/03/2013 by computing the income of the assessee at Rs. 6,41,16,142/-. Aggrieved by the assessment order dated 01/03/2013, assessee preferred an appeal before the ld CIT(A) and the CIT (A) vide order dated 30.07.2020 dismissed the appeal filed by the assessee. As against the order of 6 ITA No. 162/Del/2022 Avantha Realty Ltd. Vs. DCIT the ld CIT(A) dated 30.07.2020 the assessee preferred the present appeal on the grounds mentioned above. 4. We have heard the parties perused the material available on record. A per the Ground No.1 and its sub grounds, the assessee is aggrieved by the order passed by CIT(A) which is in violation of principle of natural justice, therefore, the order the ld CIT(A) deserves to be set aside. 5. On the other hand the Ld DR relied on the order of the lower authorities. 6. It is not in dispute that the order impugned was passed on 30.07.2020. The hearing for the above appeal was fixed during the period of country-wide lockdown imposed by the Govt. of India. As per the ground No.1 and its sub grounds of appeal, the assessee has specifically pleased that the ld CIT(A) has not given physical/ virtual or online opportunity of being heard to the assessee. Considering the above facts and circumstances of the case, without expressing any view on the merit of the case, we deem it fit to remand the matter to the file of Ld. CIT (A) for de novo adjudication of all the issues involved in the Appeal. Accordingly, we allow ground No. 1 of the assessee’s appeal by directing the ld CIT(A) to dispose off the appeal afresh after providing opportunity of being heard to the assessee. 7 ITA No. 162/Del/2022 Avantha Realty Ltd. Vs. DCIT 7. Since, we have remanded the issue to the file of the ld CIT(A) to decide the case on merit, other grounds on merit are not adjudicated and the same are left open to be decided by the CIT (A). 8. In the result the appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open court on : 31/05/2023. Sd/- Sd/- ( ANIL CHATURVEDI ) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 31/05/2023 *R.N, Sr. PS* Copy forwarded to :- 1. Appellant 2. Respondent 3. CIT 4. CIT (Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 8 ITA No. 162/Del/2022 Avantha Realty Ltd. Vs. DCIT