Dhanraj Haribhau Mahale, Nashik V. Income Tax Office, Ward-1(4), Nashik

ITA 212/PUN/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2080 (ITAT-PUNE)
• Duration Of Justice: 9 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 06-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Opportunity of being heard; Non compliance; Set aside
• Section: 147; 148; 144; 142(1); 250; 201

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI P.M. JAGTAP , V ICE P RESIDENT(KZ) . / ITA NO. 212 /PUN/20 20 / ASSESSMENT YEAR : 201 0 - 1 1 DHANRAJ HARIBHAU MAHALE 01, MAUJE WARE, TAL. DINDORI, DIST. NASHIK 422202 PAN : A SHPM8997M ....... / APPELLANT / V/S. THE INCOME TAX OFFICER, WARD 1(4), NASHIK / RESPONDENT ASSESSEE BY : NONE REVENUE BY : SHRI S.P. WALIMBE / DATE OF HEARING : 0 3 .12.2020 / DATE OF PRONOUNCEMENT : 04 .12.2020 / ORDER PER P.M. JAGTAP, VP : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD.CIT(A) - 1 , NASHIK , DATED 02 . 12 .201 9 PASSED EX - PARTE , WHEREBY HE DISMISSED THE APPEAL OF ASSESSEE FOR NON PROSECUTION . 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL . AS PER THE INFORMATION RECEIVED BY THE ASSESSING OFFICER, THE AS SESSEE HAD SOLD THE ANCESTRAL NON - AGRICULTURAL LAND OWNED JOINTLY BY HIM AT IGATPURI, DIST. NASHIK ON 16 - 01 - 2010 FOR TOTAL CONSIDERATION OF RS.1,10,00,000/ - . SINCE THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DISCLOSING CAPITAL GAIN ARISING FROM THE SAID SALE WAS NOT FILED BY THE ASSESSEE, A NOTICE U/S 148 OF THE ITA NO . 212 /PUN/ 20 20 2 INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS ISSUED BY THE ASSESSING OFFICER ON 03 - 03 - 2016 TO THE ASSESSEE. THE SAID NOTICE ISSUED BY THE ASSESSING OFFICER U/S 148 OF THE ACT AS WELL AS SUBSEQUENT NOTICES ISSUED BY HIM U/S 142(1) OF THE ACT REMAINED UN - COMPLIED WITH BY THE ASSESSEE. THE ASSESSING OFFICER THEREFORE WAS LEFT WITH NO OPTION , BUT TO COMPLETE THE ASSESSMENT EX - PARTE TO THE BEST OF HIS JUDGMENT ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. IN THE ASSESSMENT SO COMPLETED U/S 144 / 147 OF THE ACT VIDE AN ORDER DATED 19 - 12 - 2016, THE ASSESSEES SHARE OF LONG TERM CAPITAL GAIN AS COMPUTED BY HIM AT RS.32,73,125/ - WAS BROUGHT TO TAX BY THE ASSESSING OFFICER IN THE HANDS OF ASSESSEE. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER U /S 14 4 / 147 OF THE ACT, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) CHALLENGING THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LONG TERM CAPITAL GAIN AN D SINCE THERE WAS NO SATISFACTORY COMPLIANCE ON THE PART OF THE ASSESSEE TO THE NOTICES ISSUED BY HIM FIXING THE SAID APPEAL FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION VIDE HIS APPELLATE ORDER DAT ED 02 - 12 - 2019 PASSED EX - PARTE . A GGRIEVED BY THE SAME, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4 . AT THE TIME OF HEARING FIXED IN THIS CASE TODAY, NONE HAS APPEARED ON BEHALF OF THE ASSESSEE. IN GROUND NO.1 THE ASSESSEE HAS RAISED A P RELIMINARY ISSUE CHALLENGING THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX - PARTE BY STATING THAT THE SAME WAS PASSED BY THE LD. CIT(A) DISMISSING THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION WITHOUT GIVING PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEAR D. IT IS ALSO SUBMITTED THAT THE ASSESSEE HAD A SUFFICIENT CAUSE FOR NON COMPLIANCE TO THE NOTICES ISSUED BY THE LD. CIT(A) FIXING THE APPEAL FOR HEARING FROM TIME TO TIME AND THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE FOR N ON PROSECUTION WITHOUT GIVING PROPER AND ITA NO . 212 /PUN/ 20 20 3 SUFFICIENT OPPORTUNITY OF BEING HEARD AND WITHOUT GOING INTO THE MERITS OF THE ISSUE RAISED IN THE SAID APPEAL. 5. AS PER SPECIFIC PROVISIONS CONTAINED IN SUB - SECTION (6) OF SECTION 250 OF THE ACT, THE LD. CIT(A) WAS REQUIRED TO DISPOSE OF THE APPEAL OF ASSESSEE BY AN ORDER IN WRITING STATING THEREIN THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. A PERUSAL OF THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) CLEARLY SHOWS THAT THE SAME DOES NOT COMPLY WITH THE SE MANDATORY REQUIREMENTS. EVEN THE LD. DR HAS NOT DISPUTED THIS POSITION AND SUBMITTED THE MATTER MAY BE SENT BACK TO THE LD. CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE AFRESH ON MERITS AFTER GIVING PROPER AND SUFFICI ENT OPPORTUNITY OF BEING HEARD. THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) EX - PARTE DISMISSING THE APPEAL OF THE ASSESSEE FOR NON PROSECUTION IS ACCORDINGLY SET ASIDE AND THE MATTER IS REMITTED BACK TO HIM FOR DISPOSING OF THE APPEAL OF ASSESSEE AFRESH O N MERITS IN ACCORDANCE WITH THE LAW AFTER GIVING THE ASSESSEE A PROPER AND SUFFICIENT OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO DIRECTED TO MAKE DUE COMPLIANCE BEFORE THE LD. CIT(A) AND EXTEND ALL THE POSSIBLE COOPERATION IN ORDER TO ENABLE THE LD. CIT(A) TO DISPOSE OF THE APPEAL AFRESH ON MERITS EXPEDITIOUSLY. 6 . IN THE RESULT, THE APPEAL OF ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE O PEN COURT ON 4 TH DECE MBER , 2020 SD/ - ( P.M. JAGTAP ) VICE PRESIDENT / PUNE; / DATED : 4 TH DECEMBER, 2020. GCVSR ITA NO . 212 /PUN/ 20 20 4 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. THE CIT (A) - 1 , NASHIK 4 . 5. THE PR. CIT - 1 , NASHIK , , / DR, ITAT, SMC PUNE 6 . / GUARD FILE / BY ORDER, / / TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE