Shri Hari Singh L/H Ram Kishore, Ghaziabad V. ITO, Noida

ITA 1737/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8506 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 22-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S N MEENA
• Keywords: Sale consideration of property below Jantri Value
• Section: 133(6); 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO.1737/DEL/2017 ASSESSMENT YEAR: 2008-09 SHRI HARI SINGH L/H RAM KISHORE C/O M/S. ASHOK RAJ & ASSOCIATES, 19, NAVYUG MARKET, 2 ND FLOOR, GHAZIABAD PAN NO. EKEPS9968H VS. INCOME TAX OFFICER WARD- 1 (4) NOIDA (APPELLANT) (RESPONDENT) APPELLANT BY MS. GUNJAN SHARMA, CA RESPONDENT BY SH. S. N. MEENA, SR. DR. DATE OF HEARING: 21/01/2020 DATE OF PRONOUNCEMENT: 21/01/2020 ORDER PER R.K PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 24.01.2017 OF THE CIT(A)-1, NOIDA RELAT ING TO A.Y.2008-09. PAGE | 2 2. THE ASSESSEE IN THE GROUNDS OF APPEAL HAS CHALLE NGED THE EXPARTE ORDER OF THE CIT(A) IN CONFIRMING THE ADDIT ION MADE BY THE AO IN THE ORDER PASSED U/S. 147/144 OF THE IT ACT,1 961. 3. FACTS OF THE CASE, IN BRIEF ARE THAT AS PER THE AIR INFORMATION, THE ASSESSEE ALONGWITH ONE CO-PARTNER SOLD IMMOVABLE PROPERTY BEARING KHATA NO. 1476, KHET NO 69, RAKBA 0.7020, KHET NO 70, RAKBA 0.0380 HECTARE AND KHET N O 71, RAKBA 0.1260 HECTARE TOTALLING THREE KITA TOTAL RAK BAI 0.8660 HECTARE SITUATED AT VILLAGE DHUM MANIKPUR, PARGANA AND TEHSIL DADRI, GAUTAM BUDH NAGAR DURING F.Y. 2007-08. THE S ALE CONSIDERATION OF THE ABOVE PROPERTY WAS RS.30,00,00 0/- AND VALUE FOR THE PURPOSE OF STAMP DUTY WAS RS.2,60,60, 000/-. TO EXAMINE THE ISSUE OF PAYMENT OF TAX ON CAPITAL GAIN ARISING ON TRANSFER/SALE OF ABOVE PROPERTY, VERIFICATION LETTE R VIDE NOTICE U/S 133(6) WAS ISSUED BY THE AO TO THE ASSESSEE ON 13.0 1.2015. IN RESPONSE TO THE SAME, THE ASSESSEE DID NOT SUBMIT A NY REPLY. AGAIN ON 03.02.2015 THE WARD INSPECTOR DULY SERVED THE NOTICE ON ASSESSEES LEGAL HEIR SH. RAM KISHORE SAINI. IN RES PONSE TO THE SAME SH. RAM KISHORE SAINI SUBMITTED THAT HIS FATHE R SH. HARI SINGH EXPIRED IN THE YEAR 2011 AND IN SUPPORT OF HI S CLAIM HE FURNISHED DEATH CERTIFICATE OF SH. HARI SINGH. HOWE VER ASSESSEES LEGAL HEIR SH. RAM KISHORE SAINI DID NOT FURNISH DE TAILS OF TAX PAYMENT ARISING ON CAPITAL GAIN ON SALE OF AFORESAI D PROPERTY. THEREFORE, THE AO INITIATED ACTION UNDER SECTION 14 7 OF THE IT ACT, 1961 AFTER GETTING APPROVAL FROM THE ADDL. COMMISSI ONER OF INCOME TAX, RANGE-1, NOIDA WHICH WAS ACCORDED ON 02 .03.2015 PAGE | 3 AND ACCORDINGLY HE ISSUED NOTICE U/S 148 ON 05/09.0 3.2015 WHICH WAS DULY SERVED UPON THE ASSESSEES LEGAL HEI R SH. RAM KISHORE SAINI. IN COMPLIANCE TO NOTICE U/S 148 OF T HE IT ACT, 1961 NEITHER ANYBODY ATTENDED NOR FILED ANY APPLICATION FOR ADJOURNMENT . SINCE THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE, THE AO INVOKING THE PROVISION OF SECTION 144 OF THE IT ACT AND APPLYING THE PROVISION OF SECTION 50C, DETE RMINED THE LONG TERM CAPITAL GAIN IN THE HANDS OF THE ASSESSEE AT RS.1,20,75,668/-. 4. SINCE NONE APPEARED ON BEHALF OF THE ASSESSEE DE SPITE SERVICE OF NOTICE, THE LD. CIT(A) IN THE EXPARTE OR DER PASSED BY HIM DISMISSED THE APPEAL FILED BY THE ASSESSEE. 5. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING SUBMITTED THAT THE LD. CIT(A) WITHOUT GIVING ADEQUA TE OPPORTUNITY HAS DISMISSED THE APPEAL OF THE ASSESSEE. FURTHER HE HAS NOT DECIDED THE APPEAL ON MERIT. SHE REQUESTED THAT IN THE INTEREST OF JUSTICE THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY TO SUBSTANTIATE HIS CASE. SHE ACCORDINGLY SUBMITTED TH AT THE MATTER MAY KINDLY BE RESTORED TO THE FILE OF THE CIT(A) FO R FRESH ADJUDICATION. PAGE | 4 7. THE LD. DR ON THE OTHER HAND STRONGLY OPPOSED TH E ARGUMENTS ADVANCED BY THE ASSESSEE. HE SUBMITTED T HAT DESPITE OPPORTUNITIES GRANTED BY THE AO AND THE CIT(A) THER E IS NO COMPLIANCE AND, THEREFORE, NO FURTHER OPPORTUNITIES SHOULD BE GRANTED TO THE ASSESSEE AND THE APPEAL BE DECIDED H ERE ITSELF BY DISMISSING THE APPEAL OF THE ASSESSEE. 8. WE HAVE HEARD THE RIVAL ARGUMENTS MADE BY BOTH T HE SIDES AND PERUSED THE RECORD. IT IS AN ADMITTED FACT THAT DESPITE NUMBER OF OPPORTUNITIES GRANTED BY THE AO AND THE C IT(A) THERE WAS NO COMPLIANCE FROM THE SIDE OF THE ASSESSEE FOR WHICH BOTH THE LOWER AUTHORITIES HAVE PASSED EXPARTE ORDER. IT IS ALSO AN ADMITTED FACT THAT THE LD. CIT(A) HAS NOT DECIDED T HE APPEAL ON MERIT WHICH HE IS REQUIRED TO DO AS PER THE PROVISI ONS OF THE ACT BUT HAS SIMPLY DISMISSED THE APPEAL FOR WANT OF PRO SECUTION. CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE A ND IN THE INTEREST OF JUSTICE WE DEEM IT PROPER TO RESTORE THE ISSUE T O THE FILE OF THE CIT(A) WITH A DIRECTION TO GRANT ONE FINAL OPPORTUN ITY TO THE ASSESSEE TO SUBSTANTIATE HIS CASE AND DECIDE THE IS SUE AS PER FACT AND LAW. THE ASSESSEE IS ALSO HEREBY DIRECTED TO AP PEAR BEFORE THE CIT(A) AND SUBSTANTIATE HIS CASE FAILING WHICH THE LD. CIT(A) IS AT LIBERTY TO PASS APPROPRIATE ORDER AS PER LAW. WE HO LD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSE. PAGE | 5 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 21.01.2020. SD/- SD/- (SUCHITRA KAMBLE) (R.K PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA* DATE:- 21.01.2020 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI DATE OF DICTATION 21.01.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21.01.2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS 21.01.2020 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 21.01.2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 21.01.2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 21.01.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 21.0 1.2020 DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGIST RAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER