Jayshreeben Mukeshbhai Zaveri, Surat V. Income Tax Officer, Ward 2(2)(2), Surat

ITA 207/SRT/2022

AI Insights

The case involves an appeal by Jayshreeben Mukeshbhai Zaveri against the order of the National Faceless Appeal Centre (NFAC)/Commissioner of Income Tax (Appeals) which upheld the addition of Rs. 15,93,000 as unexplained capital gain for the Assessment Year 2011-12. The assessee contended that she inherited agricultural land which was sold, and the proceeds were not disclosed as she was not filing returns due to low income. The Assessing Officer had made the addition ex parte under Section 144 r.w.s. 147 of the Income Tax Act, 1961, after the assessee failed to respond to notices. The Tribunal found that the lower authorities had passed their orders in ex parte proceedings and deemed it appropriate to restore the case for a fresh assessment.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 301534 (ITAT-SURAT)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 12-12-2022
• Assessment Year: misc
• Appeal Filed On: 11-01-2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 147; 148; 144; 2(14); 142(1); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH (SMC), SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER ITA No. 207/Srt/2022 (Assessment Year: 2011-12) (Virtual hearing) Jayshreeben Mukeshbhai Zaveri, 102, C/o- Sureshbhai Lalbhai Kahar, Shreenath Apartment, Behind Mehta park, Surat, Gujarat-395007. Ph. No.-9925555899 [e-mail] PAN No. AAOPZ 2845 E Vs. I.T.O., Ward 2(2)(2), Surat. Appellant/ assessee Respondent/ revenue Appellant represented by Shri Kamlesh Bhatt, A.R. Respondent represented by Shri Vinod Kumar, Sr. DR Date of hearing 13/12/2022 Date of pronouncement 13/12/2022 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (in short, the NFAC)/learned Commissioner of Income Tax (Appeals) (in short, the ld. CIT(A) dated 13/05/2022 for the Assessment year (AY) 2011-12. The assessee has raised following grounds of appeal: “1. In view of the facts and circumstances of the case, the Ld. Income Tax Officer Ward 2(2)(2), Surat grievously erred in law by making assessment and adding Amount of Rs. 15,93,000/- on account of unexplained capital gain and hence Your appellant prays that the same be deleted.” 2. Brief facts of the case are that the case of assessee for the A.Y. 2010-11 was reopened on the basis of information available on ITD system that the ITA No.207/Srt/2022 Jayshreeben Mukeshbhai Zaveri Vs ITO 2 assessee alongiwth her co-owner sold immovable property of Rs. 31,86,000/- . As no return of income was filed by the assessee, the case of assessee was reopened under Section 147 of the Income Tax Act, 1961 (in short, the Act). Notice under section 148 dated 31.03.2017 was served on the assessee. The Assessing Officer issued notice to the assessee under Section 133(6) to furnish the details regarding capital gain earned on sale of immovable property by the assessee. The Assessing Officer recorded that despite giving various notices under Section 148 or 142(1), the assessee has not responded nor any return of income in response to notice under Section 148 was filed. The Assessing Officer issued final show cause notice dated 08/11/2013 fixing the date of hearing on 13/11/2017 as to why the proceedings be not finalised ex parte by making additions/disallowances of 50% of total sales value of land. The Assessing officer recorded that no response was made by assessee. The Assessing Officer completed the assessment under Section 144 r.w.s. 147 of the Act on 24/11/2017. 3. Aggrieved by the additions in the assessment order, the assessee filed appeal before the ld. CIT(A). The appeal of assessee was migrated in ld. NFAC/CIT(A). The ld. CIT(A) dismissed the appeal of assessee by holding that despite giving several notices, the assessee neither filed any information or submission or document to substantiate the grounds of appeal. The ld. CIT(A) after considering the material on record, held that the addition has ITA No.207/Srt/2022 Jayshreeben Mukeshbhai Zaveri Vs ITO 3 been cogently dealt with by the Assessing Officer in the assessment order and dismissed the appeal. Further aggrieved, the assessee has filed the present appeal before this Tribunal. 4. I have heard the submission of learned Authorised Representative (ld. AR) of the assessee and the learned Senior Departmental Representative (ld. Sr. DR) for the revenue and have gone through the orders of lower authorities carefully. The ld. AR of the assessee submits that the assessee inherited the agricultural land from her parents in the remote area in District Thane Maharashtra. The said agricultural land was sold during the A.Y. 2010-11. The said land was sold for a consideration of Rs. 14.00 lacs and the assessee received 50% share i.e. Rs. 7.00 lacs as her share. The assessee was not having sufficient income, therefore was not filing return of income. No notice either under Section 148 or 142(1) of the Act or any other notice as recorded in the assessment order was received by the assessee as the assessee shifted his address from Nanpura to Shreenath Apartment, Kadampali, Surat at the address of her daughter. In fact, no such notice was ever received. When the assessee came to know about the additions in the assessment, the assessee filed appeal before the ld. CIT(A). Notice issued from ld. CIT(A) was also not served upon the assessee as it was the Covid-19 Period. The assessee was not aware about the use of electronic gazette. In absence of proper service of notice, the assessee neither could informed his representative nor filed any ITA No.207/Srt/2022 Jayshreeben Mukeshbhai Zaveri Vs ITO 4 response to any show cause notice issued by the ld. CIT(A). The ld. AR of the assessee prayed that the assessee has good case on merit and is likely to succeed when the assessee is given opportunity to contest the case on merit. The land sold by assessee and her co-owner were agricultural land and were not the asset within the meaning of Section 2(14) of the Act being the rural agricultural land. The ld. AR prayed to restore the case to the file of Assessing Officer and undertake on behalf of assessee to be vigilant in attending the hearing before the Assessing Officer. 5. On the other hand, the ld. Sr.DR for the revenue supported the orders of lower authorities. The ld. Sr.DR submits that the assessee neither attended the hearing before the Assessing Officer nor before the ld. CIT(A) despite giving a number of opportunities. 6. I have considered the submissions of both the parties and have gone through the orders of lower authorities carefully. I find that the Assessing Officer completed the assessment under Section 144 r.w.s 147 of the Act on 24/11/2017 wherein the Assessing Officer made addition of Rs. 15.93 lacs. The ld. CIT(A) dismissed the appeal of assessee in an ex parte proceeding. Before me, the ld. AR of the assessee submits that the assessee may be given one more opportunity to contest the case on merit. Considering the facts and circumstances of the case and the fact that the lower authorities passed the order in ex parte proceedings, therefore, I deem it appropriate to ITA No.207/Srt/2022 Jayshreeben Mukeshbhai Zaveri Vs ITO 5 restore the case to the file of Assessing Officer to adjudicate the issue afresh after giving due and reasonable opportunity of hearing to the assessee. The assessee is also directed to be vigilant for attending the hearing and not to seek the adjournment without any valid reason. 7. In the result, this appeal of assessee is allowed for statistical purposes only. Order pronounced in the open court on 13 th December, 2022 at the time of hearing appeal. Sd/- (PAWAN SINGH) JUDICIAL MEMBER Surat, Dated: 13/12/2022 *Ranjan Copy to: 1. Assessee 2. Revenue 3. CIT(A) 4. CIT 5. DR 6. Guard File By order Sr.Private Secretary, ITAT, Surat