Mahendra Baburao Kote, Ahmednagar V. Income-tax Officer,

ITA 1986/PUN/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1557 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-07-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 11-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , ! # $% , & ' BEFORE SHRI VIKAS AWASTHY, JM AND SHRI PRADIP KUMAR KEDIA, AM ( / ITA NO. 1986/PN/2013 ) * +* / ASSESSMENT YEAR : 2010-11 SHRI MAHENDRA BABURAO KOTE, SHIRDI, O/O D.K. BHANDARI, TAX CONSULTANT, DAULAT BLDG., KING GATE, AHMEDNAGAR PAN : ARBPK2180K ....... / APPELLANT ) / V/S. INCOME TAX OFFICER, WARD 1, AHMEDNAGAR / RESPONDENT ( / ITA NO. 1987/PN/2013 ) * +* / ASSESSMENT YEAR : 2010-11 SMT. VATSALA BABURAO KOTE, SHIRDI, O/O D.K. BHANDARI, TAX CONSULTANT, DAULAT BLDG., KING GATE, AHMEDNAGAR PAN : AXUPK8325F ....... / APPELLANT ) / V/S. INCOME TAX OFFICER, WARD 4, AHMEDNAGAR / RESPONDENT ASSESSEE BY : SHRI KISHOR PHADKE REVENUE BY : SHRI HITENDRA NINAWE / DATE OF HEARING : 18-07-2016 / DATE OF PRONOUNCEMENT : 18-07-2016 2 ITA NOS. 1986 & 1987/PN/2013, A.Y. 2010-11 , / ORDER PER VIKAS AWASTHY, JM : THESE APPEALS HAVE BEEN FILED BY THE ASSESSEES AGAINST THE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS)-IT/TP, PUNE DATED 28-08-2013 FOR THE ASSESSMENT YEAR 2010-11 IN THEIR RE SPECTIVE CASES. SINCE, THE ISSUES RAISED IN BOTH THE APPEALS ARE ARISING FROM SAME SE T OF FACTS AND THE GROUNDS OF APPEAL ARE IDENTICAL, THE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION. 2. THE BRIEF FACTS OF THE CASE AS EMANATING FROM RECORD S ARE: THE ASSESSEES ARE ENGAGED IN SUPPLY OF SAI MURTIES (IDOLS) MA DE OF PLASTIC, MARBLE, METAL ETC. AT SHIRDI. THE ASSESSEES FILED THEIR RESP ECTIVE RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR ON 14-03-20 11. AN AIR INFORMATION WAS RECEIVED DURING THE FINANCIAL YEAR 2009-10, A CCORDING TO WHICH THE ASSESSEES HAD SOLD A LAND FOR ` 96,00,000/-. THE LAND WAS JOINTLY OWNED BY THE ASSESSEES. IN THEIR RESPECTIVE RE TURN OF INCOME, THE ASSESSEES HAD NOT DECLARED ANY INCOME FROM SALE OF LAND. THE CASE OF THE ASSESSEES WERE SELECTED FOR SCRUTINY UNDER CASS AND ACCORDINGLY SEPARATE NOTICE U/S. 143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WERE ISSUED TO THE ASSESSEE S ON 29-08-2011. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESS ING OFFICER MADE ADDITION IN THE HANDS OF THE ASSESSEES ON ACCOUNT OF LONG TERM CAPITAL GAIN ARISING ON SALE OF LAND. AGGRIEVED BY THE ASSESSMENT ORDERS, THE ASSESSEES PRE FERRED APPEALS BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE 3 ITA NOS. 1986 & 1987/PN/2013, A.Y. 2010-11 COMMISSIONER OF INCOME TAX (APPEALS) VIDE IMPUGNED ORDERS DISMISSED BOTH THE APPEALS FOR WANT OF PROSECUTION. NOW, THE ASSE SSEES ARE IN SECOND APPEAL BEFORE THE TRIBUNAL. 3. SHRI KISHOR PHADKE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEES HAD SOLD ANCESTRAL AGRICU LTURAL LAND BEARING SURVEY NO. 100/2/3/12 FOR ` 96,00,000/-. THE ASSESSEES IN THE INDIVIDUAL CAPACITY FILED THEIR RETURN OF INCOME FOR THE ASSE SSMENT YEAR 2010-11 DISCLOSING THEIR INCOME FROM TRADING/SALE OF SAIBABA IDOLS, MEMENTOS, PHOTOS ETC. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEES HAD SPECIFICALLY POINTED OUT THAT THE AGRIC ULTURAL LAND SOLD BELONGED TO HUF. HOWEVER, THE ASSESSING OFFICER BRUSH ED ASIDE ALL THE DOCUMENTS PLACED ON RECORD BY THE ASSESSEES AND MADE ADDITION IN THE HANDS OF THE ASSESSEES ON ACCOUNT OF LONG TERM CA PITAL GAIN FROM SALE OF LAND. DURING THE FIRST APPELLATE PROCEEDINGS THE ASSESSEES APPROACHED SHRI DILIP BHANDARI TO REPRESENT THEM BEFORE T HE COMMISSIONER OF INCOME TAX (APPEALS). ON THE DATE OF HEAR ING I.E. 20-08-2013, THE LD. AR OF THE ASSESSEES WAS SUFFERING FROM TYPHOID AND WAS ADVISED COMPLETE BED REST BY THE DOCTOR. DUE TO S EVERE ILLNESS THE LD. AR OF THE ASSESSEES COULD NOT FILE ADJOURNMENT PETITION BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE COMMISSIONER OF I NCOME TAX (APPEALS) WITHOUT AFFORDING FURTHER OPPORTUNITY OF HEARING DISMISSED THE APPEALS OF THE ASSESSEES. THE LD. AR OF THE ASSESSEES IN SUPPORT OF HIS SUBMISSIONS PLACED ON RECORD AFFIDAVIT OF SHR I DILIP BHANDARI ALONG WITH A COPY OF MEDICAL CERTIFICATE. THE LD. AR PRAYED THAT AN OPPORTUNITY MAY BE GRANTED TO THE ASSESSEES TO REPRESENT THEIR CASE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 4 ITA NOS. 1986 & 1987/PN/2013, A.Y. 2010-11 4. ON THE OTHER HAND SHRI HITENDRA NINAWE REPRESENTING THE DEPARTMENT SUBMITTED THAT THE ASSESSEES COULD HAVE AP PEARED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IN PERSON OR CO ULD HAVE FILED LETTER SEEKING ADJOURNMENT. A PERUSAL OF THE ORDER OF C OMMISSIONER OF INCOME TAX (APPEALS) SHOWS THAT NEITHER THE ASSESSEES A PPEARED IN PERSON NOR ANY ADJOURNMENT PETITION WAS FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). FURTHER, THE ASSESSEES DO NOT H AVE ANY CASE ON MERITS. THE ASSESSEES HAVE NOT DISCLOSED INCOME FROM SALE OF LAND IN THEIR RETURN OF INCOME. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIV ES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF THE AUTHORITIES B ELOW. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT NOTICE OF HEARING WAS ISSUED TO THE ASSESSEES ON 25-07-2013 FOR 21-08-2013. SINCE, NONE AP PEARED ON BEHALF OF THE ASSESSEES, THE COMMISSIONER OF INCOME TAX (AP PEALS) DISMISSED THE APPEALS ON 28-08-2013 WITHOUT AFFORDING FURTH ER OPPORTUNITY OF HEARING TO THE ASSESSEES. A PERUSAL OF A FFIDAVIT FILED BY SHRI DILIP BHANDARI, AUTHORIZED REPRESENTATIVE OF THE ASSESS EES BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) REVEAL THAT HE CO ULD NOT REPRESENT THE ASSESSEES BEFORE THE FIRST APPELLATE AUT HORITY ON ACCOUNT OF MEDICAL EXIGENCY. THE COMMISSIONER OF INCOME TAX (APPEA LS) DISMISSED THE APPEALS OF THE ASSESSEES FOR WANT OF PROSECUTION. IN SU CH CIRCUMSTANCES WE ARE OF CONSIDERED OPINION THAT THIS FILE N EEDS A REVISIT TO THE COMMISSIONER OF INCOME TAX (APPEALS). ACCORDINGLY, WE REMIT THESE APPEALS BACK TO THE FILE OF COMMISSIONER OF INCOME T AX (APPEALS) FOR DECIDING THE ISSUES ON MERITS AFTER AFFORDING SUFFICIENT OPP ORTUNITY OF HEARING TO THE ASSESSEES, IN ACCORDANCE WITH LAW. 5 ITA NOS. 1986 & 1987/PN/2013, A.Y. 2010-11 6. IN THE RESULT, THE APPEALS OF THE ASSESSEES ARE ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HE ARING ON MONDAY, THE 18 TH DAY OF JULY, 2016. SD/- SD/- (PRADIP KUMAR KEDIA) (VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; !' / DATED : 18 TH JULY, 2016 RK ,-#./0+. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. # # $ () / THE CIT(A)-IT/TP, PUNE 4. # # $ / THE CIT-I, PUNE 5. '() *+ , # *+ , , ,-. , / DR, ITAT, B BENCH, PUNE. 6. )/0 12 / GUARD FILE. // ' // TRUE COPY// #3 / BY ORDER, 4 *. / PRIVATE SECRETARY, # *+ , / ITAT, PUNE