Shri Sandeep Babar, Sirsa V. ITO WArd-3, Sirsa

ITA 219/CHANDI/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8964 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2016-2017
• Appeal Filed On: 04-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Assessee Lawyers: KUNAL AGGARWAL
• Keywords: Sale consideration of property below Jantri Value; Opportunity of being heard; Earning of tax free income; Set aside
• Section: 54F

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B, CHANDIGARH (VIRTUAL COURT) .., ! '# .. , $ %& BEFORE: SHRI. N.K.SAINI, VP & SHRI , R.L. NEGI, JM ITA NO. 219/CHD/2020 ASSESSMENT YEAR : 2016-17 SHRI SANDEEP BAB B AR C/O KUNAL AGARWAL & ASSOCAITES, 226, SECOND FLOOR JMD MEGAPOLIS, SOHNA ROAD, SECTOR-48 GURGAON- 122001, HARYANA THE ITO WARD-3, SIRSA PAN NO: AFYPB8121Q APPELLANT RESPONDENT !' ASSESSEE BY : SHRI KUNAL AGGARWAL, CA #!' REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ %! & DATE OF HEARING : 03/08/2021 '()*! & DATE OF PRONOUNCEMENT : 03/08/2021 %'/ ORDER PER N.K. SAINI, VICE PRESIDENT THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DT. 31/10/2019 OF LD. CIT(A), HISAR. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L: 1. WHETHER THE LD. CIT-APPEALS WAS JUSTIFIED IN PASSIN G THE ORDER AS EX PARTY WITHOUT COMMUNICATING THE HEARING NOTICES ON ADDRES S SPECIFICALLY MENTIONED IN THE FORM-35. 2. WITHOUT PREJUDICE TO OTHER GROUNDS, THAT ON THE FAC TS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE SHOULD BE ALLOWED EXEMPTI ON UNDER SECTION 54F OF THE I.T. ACT, 1961 ON ACCOUNT OF PURCHASE OF RESIDENTIA L HOUSE IN GURGAON FOR RS. 6154791. 2 3. THAT THE LD. A.O. HAS ERRED IN CONCLUDING THAT THERE WAS NO CONSTRUCTION ON THE SOLD COMMERCIAL PLOT IN THE YEAR 2015-16 ON THE PHYSICAL INSPECTION OF THE PLOT IN 2018, THEREBY ERRED IN DISALLOWING THE COST OF IMPROVEMENT OF RS. 3900098/-. 4. WHETHER THE LD. A.O. JUSTIFIED IN NOT REFERRING THE VALUATION TO DVO FOR THE DIFFERENCE IN ACTUAL SALE CONSIDERATION AND STAMP V ALUE AS PER SECTION 50C. 5. THAT THE APPELLANT RESERVES THE RIGHT TO AMEND, DEL ETE, ADD, SUBSTITUTE, MODIFY OR ALTER ANY ONE OR MORE OF THE GROUNDS OF A PPEAL AT THE TIME OF HEARING. 3. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND N O. 1 RELATES TO THE EXPARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT COMM UNICATING THE HEARING NOTICE ON THE ADDRESS SPECIFICALLY MENTIONED IN FOR M NO. 35. 4. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE E-FILED THE RETURN OF INCOME ON 31/03/2017 DECLARING AN INCOME OF RS. 2,43,110/- AND EXEMPT INCOME OF RS. 1,79,62,000/-WHICH WAS PROCESSED UNDER SECTION 143( 1) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS ACT) . SUBSEQUENTLY, THE CASE WAS SELECTED FOR SCRUTINY. THE A.O. FRAMED THE ASSESSMENT AT AN INCO ME OF RS. 1,21,500/- AND LONG TERM CAPITAL GAIN OF RS. 49,61,432/-. 5. BEING AGGRIEVED THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO PASSED THE IMPUGNED ORDER EXPARTE AND DISMISSED THE APPEAL OF THE ASSESSEE IN LIMINE BY OBSERVING AS UNDER: DECISIONS: I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, ASSESSMENT ORDER AND FOUND THAT AFTER GIVING SUFFICIENT OPPORTUNITIE S TO THE ASSESSEE DATED 16.08.2019, 27.08.2019, 18.09.2019 AND 14.10.2019 N O WRITTEN REPLY HAS BEEN SUBMITTED BY THE ASSESSEE. 2. THE LAW ASSISTS THOSE WHO ARE VIGILANT AND NOT T HOSE WHO SLEEP OVER THEIR RIGHTS. THIS PRINCIPLES IS EMBODIED IN THE WELL KNOWN DICTU M VIGILANTIBUS, NON DORMETIBUS, JURA SUBVENIENT. IN THE CIRCUMSTANCES, PERFORCE, THE APPEAL IS DETERMINED EX-PARTE QUA THE APPELLANT. THIS COURSE OF ACTION IS IN LINE WITH THE PRINCIPLES EXPOSITED IN CIT VS. MULTIPLAN (INDIA) L TD. 38 ITD (DEL) 320; LATE TUKOJI RAO HOLKAR VS. CWT (1997) 223 ITR 480 (MP INDORE BENCH) AND CIT VS. B.N. BHATTACHARGEE AND ANOTHER 118 ITR 461 (SC). IN 118 ITR 461, THE HON'BLE APEX COURT HAVE HELD THAT THE APPEAL DOES NOT MEAN MERE LY FILING OF THE APPEAL BUT EFFECTIVELY PURSUING IT. THIS VIEW HAS ALSO BEEN F OLLOWED BY THE ITAT, CHANDIGARH BENCH B IN IT(SS) A NO. 70/CHANDI/2004 DATED 16.2.2 006 IN THE CASE OF SMT. 3 SANTOSH GUPTA W/O SHRI P.R. GUPTA, HISAR VS. JCIT, SPL. RANGE, KARNAL (NOW ACIT, HISAR). 3. IN THESE SET OF CIRCUMSTANCES, I HAVE NO REASON TO INTERFERE IN THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER. THE APPEAL FA ILS AND IS DISMISSED. NOW THE ASSESSE IS IN APPEAL. 6. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO N OTICE FOR HEARING WAS SERVED UPON THE ASSESSE. THEREFORE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE EXPARTE IN LIMINE, WITHO UT DISCUSSING THE ISSUES ON MERIT. 7. IN HIS RIVAL SUBMISSIONS THE LD. DR SUPPORTED TH E IMPUGNED ORDER PASSED BY THE LD. CIT(A) AND SUBMITTED THAT BY CONSIDERING THE NON COOPERATIVE ATTITUDE OF THE ASSESSEE THERE WAS NO ALTERNATIVE E XCEPT TO DECIDE THE APPEAL EXPARTE BY THE LD. CIT(A). 8. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE LD. CIT(A) DID NOT DECIDE TH E APPEAL OF THE ASSESSEE ON MERIT, SHE DISMISSED THE APPEAL IN LIMINE BY SIMPLY MENTIONING THAT AFTER GIVING SUFFICIENT OPPORTUNITIES TO THE ASSESSEE NO WRITTEN REPLY HAD BEEN SUBMITTED BY THE ASSESSEE. HOWEVER, IT IS NOT BROUGHT ON RECORD THAT NOTICE FOR HEARING WAS SERVED UPON THE ASSESSEE. ON THE CONTRARY CONTENTIO N OF THE ASSESSEE IS THAT THE NOTICE FOR HEARING WAS NOT SERVED UPON THE ASSESSEE . IN THE PRESENT CASE, IT IS NOTICED THAT IN COLUMN NO. 17 OF FORM NO. 35 THE AD DRESS TO WHICH THE NOTICE MAY BE SENT IS MENTIONED AS UNDER: 226, SECOND FLOOR, JMD MEGAPOLIS, SOHNA ROAD SECT OR-48, GURGAON COPY OF FORM NO. 35 IS PLACED BY THE ASSESSEE AS AN NEXURE-I APPENDED TO THE SUBMISSION WHICH IS PLACED ON RECORD. IT IS ALSO NO TICED THAT IN THE IMPUGNED ORDER, THE LD. CIT(A) MENTIONED THE ADDRESS OF THE ASSESSEE AS UNDER: 4 SH. SANDEEP BABBAR, GALI NO. 1, BEGU ROAD, MOHNTA GARDEN, SIRSA IT IS THEREFORE NOT CLEAR AS TO WHETHER THE LD. CIT (A) SERVED THE NOTICE FOR HEARING TO THE ASSESSEE AT THE ADDRESS GIVEN IN FORM NO. 35 . MOREOVER THE APPEAL FILED BY THE ASSESSEE BEFORE THE LD. CIT(A) HAD BEEN DISM ISSED IN LIMINE AND THERE IS NO DISCUSSION ON MERIT. WE THEREFORE CONSIDERING TH E PECULIAR FACTS OF THIS CASE DEEM IT APPROPRIATE TO SET ASIDE THIS CASE BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH, IN ACCORDANCE WITH LAW, AFTER P ROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 03/08/2021 ) SD/- SD/- .. .., (R.L. NEGI ) ( N.K. SAIN I) $ %&/ JUDICIAL MEMBER ! / VICE PRESIDENT AG DATE: 03/08/2021 (+! ,-.- COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. $ / CIT 4. $ / 01 THE CIT(A) 5. -2 45&456789 DR, ITAT, CHANDIGARH 6. 8:% GUARD FILE (+ $ BY ORDER, ; # ASSISTANT REGISTRAR