Pannalal Shivratan Bagadiya (HUF), Jalna V. Assistant Commissioner of Income-tax, Jalna Circle , Jalna

ITA 218/PUN/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0946 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 23-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K VERMA
• Keywords: Capital asset
• Section: 2(14); 147

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE , BEFORE SHRI VIKAS AWASTHY, JM . / ITA NO. 218/PUN/2018 ! '! / ASSESSMENT YEAR : 2013-14 PANNALAL SHIVRATAN BAGDIYA (HUF), BAGDIYA PALACE, DR. R.P. ROAD, JALNA-431 203 PAN : AAHHP6800N .... / APPELLANT # / V/S. THE ASSISTANT COMMISSIONER OF INCOME TAX, JALNA CIRCLE, JALNA. / RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SHRI M.K. VERMA / DATE OF HEARING : 22.11.2018 / DATE OF PRONOUNCEMENT : 26.11.2018 $ / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER O F COMMISSIONER OF INCOME TAX(APPEALS)-1, AURANGABAD DATED 25.10.2017 FOR THE ASSESSMENT YEAR 2013-14. 2 ITA NO.218/PUN/2018 A.Y.2013-14 2. THE PRESENT APPEAL IS TIME BARRED BY 30 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT CITING REASONS FOR THE DELAY IN FILING OF APPEAL. A P ERUSAL OF THE AFFIDAVIT SHOWS THAT THE DELAY IN FILING OF APPEAL IS ATTRIBUTED TO NEGLIGENCE OF THE ACCOUNTANT. HOWEVER, THERE IS NO SEPARATE AFFIDAVIT FRO M THE ACCOUNTANT WHOSE NEGLIGENCE HAS RESULTED IN DELAY OF 30 DAYS IN FILING OF APPEAL. TAKING INTO CONSIDERATION ENTIRETY OF FACTS AND THE LAW LAID DOWN B Y THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF RAM NATH SAO @ RA M NATH SAHU VS. GOBARDHAN SAO AND OTHERS, REPORTED IN 2002 AIR 1201, W ITHOUT TAKING HYPER TECHNICAL AND PEDANTIC VIEW, WE ACCEPT THE EXPLANAT ION FURNISHED BY ASSESSEE CAUSING DELAY IN FILING OF THE PRESENT APPEAL. ACC ORDINGLY, THE DELAY OF 30 DAYS IN FILING OF THE PRESENT APPEAL IS CONDONED AND A PPEAL IS ADMITTED TO BE HEARD AND DISPOSED OF ON MERITS. 3. NONE HAS APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. A PERUSAL OF THE CASE FILE SHOWS THAT NOTICE OF HEARING OF T HE APPEAL WAS SENT TO THE ASSESSEE ON THE ADDRESS MENTIONED IN FORM-36 T HROUGH RPAD ON 30.10.2018 FOR TODAY I.E. 22.11.2018. NEITHER ANY AUTHORIZED R EPRESENTATIVE OF THE ASSESSEE NOR ANY ADJOURNMENT LETTER HAS BEEN R ECEIVED ON BEHALF OF THE ASSESSEE. IN SUCH CIRCUMSTANCES, I AM CONSTRAINED T O DEICIDE THE APPEAL WITH THE ASSISTANCE OF LD. DR AND THE MATERIAL AVAILABLE ON RECORD. 4. THE ASSESSEE HAS ASSAILED THE ORDER OF COMMISSIONER O F INCOME TAX (APPEALS) BY RAISING FOLLOWING GROUNDS: 1. THE LEARNED AO ERRED IN REOPENING THE ASSESSMENT UNDER SECTION 147 OF THE INCOME TAX ACT, 1961. 2. WITHOUT PREJUDICE TO GROUND NO. 1, THE LEARNED A O ERRED IN MAKING ADDITION OF RS.21,00,000/- ON ACCOUNT OF GAIN DERIV ED FROM SALE OF RURAL AGRICULTURAL LAND UNDER THE HEAD CAPITAL GAI NS. 3. THE LEARNED AO AND LEARNED CIT(A) ERRED IN NOT A PPRECIATING THAT THE LAND SOLD BY THE APPELLANT WAS A RURAL AGRICULTURAL LAND AND NOT A CAPITAL ASSET AS DEFINED UNDER SECTION 2(14) (III ) (A)/(B) OF THE INCOME 3 ITA NO.218/PUN/2018 A.Y.2013-14 TAX ACT, 1961. THAT THE GAIN DERIVED FROM SALE OF R URAL AGRICULTURAL LAND WAS EXEMPT FROM INCOME TAX. 4. ANY OTHER GROUND THAT MAY BE TAKEN AT THE TIME O F HEARING BEFORE YOUR HONOURS. 5. SHRI M.K. VERMA REPRESENTING THE DEPARTMENT SUBMITTED THAT THE ASSESSEE DID NOT BOTHER TO APPEAR BEFORE THE COMMISSION ER OF INCOME TAX (APPEALS) DESPITE SERVICE OF SEVERAL NOTICES. THE COMMISSIONER OF INCOM E TAX (APPEALS) PASSED EX-PARTE ORDER DISMISSING THE APPEAL OF AS SESSEE AFTER CONSIDERING MERITS. THE LD. DR SUBMITTED THAT ASSESSMENT O F THE ASSESSEE FOR ASSESSMENT YEAR 2013-14 WAS REOPENED AS THE ASSE SSEE FAILED TO DISCLOSE CAPITAL GAINS ON SALE OF LAND. THE ASSESSEE CLAIMED THE LAND TO BE AGRICULTURAL LAND, HOWEVER, NO DOCUMENTARY EVIDENCE WAS PL ACED ON RECORD TO SHOW THAT LAND WAS CULTIVATED BY THE ASSESSEE. THE A SSESSING OFFICER HELD THE LAND TO BE CAPITAL ASSET WITHIN THE MEANING OF SECTI ON 2(14) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 6. HEARD, THE SUBMISSIONS MADE BY LD. DR AND PERUSED THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE IN APPEAL HAS ASSAILED RE-O PENING OF ASSESSMENT U/S.147 OF THE ACT, AS WELL AS, ADDITION OF RS.21, 00,000/- UNDER THE HEAD CAPITAL GAINS. THE ASSESSEE HAD SOLD LAND COM PRISING IN GUT NO.32, HIRAPUR VILLAGE, DIST. AURANGABAD. THE ASSESSEE HELD TH E LAND TO BE AGRICULTURAL LAND EXEMPT FROM TAX. DURING ASSESSMENT PROCE EDINGS, THE ASSESSING OFFICER CONCLUDED THAT THE LAND IS SITUATED WITHIN THE LIMITS OF 8 KMS FROM THE MUNICIPAL LIMITS AND ALSO THAT THE LAND IS NOT UNDER CULTIVATION. CONSEQUENTLY, THE LAND WAS HELD TO BE NON AGR ICULTURE, WITHIN 8 KMS. OF MUNICIPAL LIMITS AND THE GAIN ARISING FROM SALE OF LAND WAS BROUGHT TO TAX UNDER THE HEAD CAPITAL GAINS. 4 ITA NO.218/PUN/2018 A.Y.2013-14 6.1 AGGRIEVED BY THE ASSESSMENT ORDER DATED 21.03.2016 PASSED U/S.143(3) R.W.S. 147 OF THE ACT, THE ASSESSEE FILED APPEAL BE FORE THE COMMISSIONER OF INCOME TAX (APPEALS). A PERUSAL OF THE IMPU GNED ORDER SHOWS THAT SEVERAL NOTICES OF HEARING OF APPEAL WERE ISSUE D TO THE ASSESSEE. DESPITE SERVICE OF NOTICES, THE ASSESSEE DID NOT BOTHER T O APPEAR BEFORE THE FIRST APPELLATE AUTHORITY. THE COMMISSIONER OF INCOME TAX (A PPEALS) IN PARA-2 OF THE IMPUGNED ORDER HAS GIVEN DETAILED CHART OF THE NOTICES ISSUED. THE FIRST NOTICE WAS ISSUED TO THE ASSESSEE ON 18.10.2016 AND THE LAST NOTICE WAS ISSUED TO THE ASSESSEE ON 25.10.2017 IN BETWE EN, SIX NOTICES WERE ISSUED TO THE ASSESSEE ON VARIOUS DATES. HOWEVER, ON NONE OF THE DATES FIXED FOR HEARING EITHER AUTHORIZED REPRESENTATIVE OF THE ASSESSEE OR ANY LETTER SEEKING ADJOURNMENT WAS FILED BY ASSESSEE. THERE W AS ABSOLUTE NON- COOPERATION ON THE PART OF THE ASSESSEE BEFORE THE FIRS T APPELLATE AUTHORITY. IN SUCH CIRCUMSTANCES, COMMISSIONER OF INCOME TAX (APPEALS ) WAS CONSTRAINED TO DECIDE THE APPEAL IN EX-PARTE PROCEEDINGS. THE CONDUCT OF THE ASSESSEE IS NOT DIFFERENT BEFORE THE T RIBUNAL EITHER. NONE HAS COME PRESENT TO REPRESENT THE ASSESSEE DES PITE NOTICE. TAKING INTO CONSIDERATION ENTIRETY OF FACTS, WE ARE OF CONSIDERED VIEW THAT IN THE INTEREST OF JUSTICE, ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE A SSESSEE TO DEFEND HIS CASE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). HOWEVER, THERE HAS BEEN NEGLIGENCE AND NON COOPERATION ON THE PART OF ASSESSEE FOR WHICH THE ASSESSEE DESERVES TO BE PENALIZED. THE PRESENT AP PEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF COMMISSIONER OF INCOME TAX (AP PEALS) SUBJECT TO PAYMENT OF COST RS.5,000/-. THE ASSESSEE SHALL DEPOSIT THE COST IN ACCORDANCE WITH RULE 32A(2) OF THE INCOME TAX (APPELLATE TR IBUNAL) RULES, 1963 WITHIN A PERIOD OF ONE MONTH FROM THE DATE OF RECEIPT OF THIS ORDER. THE ASSESSEE SHALL FURNISH PROOF OF DEPOSIT OF COST WITH THE RE GISTRY WITHIN A 5 ITA NO.218/PUN/2018 A.Y.2013-14 PERIOD OF 15 DAYS FROM THE DATE OF DEPOSIT AND SHALL ALSO FURNISH THE PROOF OF SAME BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 7. SUBJECT TO DEPOSIT OF COST, THE APPEAL OF THE ASSESSEE SHALL BE TAKEN UP FOR ADJUDICATION BY THE COMMISSIONER OF INCOME TAX (APPEA LS). THE ASSESSEE IS FURTHER DIRECTED TO APPEAR BEFORE THE COMMISSIONER OF I NCOME TAX (APPEALS) AND CO-OPERATE IN THE PROCEEDINGS. THE COMMISSIO NER OF INCOME TAX (APPEALS) SHALL DECIDE THE ISSUE AFRESH AFTER AFFORDING RE ASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, IN ACCORDANCE WIT H LAW. THE IMPUGNED ORDER IS SET ASIDE AND APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE IN THE TERMS AFORESAID. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURP OSE. ORDER PRONOUNCED ON MONDAY, THE 26 TH DAY OF NOVEMBER, 2018. SD/- ( /VIKAS AWASTHY) / JUDICIAL MEMBER / PUNE; ! ' / DATED : 26 TH NOVEMBER, 2018. SB $%&'()'' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-1, AURANGABAD. 4. THE PR. CIT-1, AURANGABAD. 5. %&' () , * () , - +,- , / DR, ITAT, SMC BENCH, PUNE. 6. './ 01 / GUARD FILE. // TRUE COPY // * 2 / BY ORDER, 3 (- /PRIVATE SECRETARY * () , / ITAT, PUNE.