Shri Naina Ram, Jalore V. ITO,Ward-1, Jalore

ITA 221/JODH/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5732 (ITAT-JODHPUR)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 10-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Cost of acquisition; Set aside
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH (SMC), JODHPUR BEFORE SHRI N.K. SAINI, VICE PRESIDENT ITA NO. 221/JODH/2018 (ASSESSMENT YEAR-2013-14) SH NAINAI RAM, S/O DHANNA RAM BHEEL, 271, HATAM KI DHANI, RAMSEEN ROAD, JALORE (RAJ.) VS THE ITO, WARD-1, JALORE (APPELLANT) (RESPONDENT) PAN: AYIPR6983P REVENUE BY SH. P.K. SINGI, DR ASSESSEE BY NONE DATE OF HEARING 01.05.2019 DATE OF PRONOUNCEMENT 06.05.2019 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 01.01.2018 OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-2, JODHPUR . 2. DURING THE COURSE OF HEARING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE. I, THEREFORE, PROCEEDED EX-PARTE AND THE APPEAL IS DECIDED AFTER HEARING THE LD. SR.DR. 2 3. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- (1) THAT ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN VIEW OF EVIDENCE ON RECORD THE LD. CIT (APPEAL) II JODHPUR HAVE WRONGLY & ERRONEOUSLY PASSED THE APPEAL ORDER DATED 01.01.2018 WHICH IS WITHOUT ANY PROPER OPPORTUNITY AND SAME IS BAD IN LAW. (2) THE ASSESSMENT ORDER UNDER APPEAL U/S SECTION 147/ 148/ 143(3) DATED 09.12.2016 IS BAD IN LAW, BAD IN FACTS AND WITHOUT JURISDICTION OF THE LD. AO, AMONGST OTHER T HE REOPENING JURISDICTION OF THE LD. AO WAS ACQUIRED I N VIOLATION. (3) THAT ON THE FACTS, IN THE CIRCUMSTANCES OF THE CASE & IN VIEW OF EVIDENCE ON RECORD THE LD. CIT (APPEAL) II JODHPUR HAVE WRONGLY & ERRONEOUSLY CONFIRMED THE ADDITION O F RS. 13,55,607/- IN RESPECT OF SHORT TERM CAPITAL GAIN W HEREAS THE ENTIRE INCOME IS BUSINESS ACTIVITY AND FALLS UNDER THE INCOME FROM BUSINESS AND WHERE THE PROVISION OF SECTION 43 CA IS APPLICABLE FROM ASSESSMENT YEAR 2014-15. (4) THAT ASSESSEE CRAVES LEAVE TO ADD, AMEND, ALTE R, MODIFY OR SUBSTITUTE ANY OF THE GROUNDS OF APPEAL AT THE D ATE ON OR BEFORE HEARING. 4. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE GROUND N O.1 RELATES TO THE EX- PARTE ORDER PASSED BY THE LD. CIT(A) WITHOUT AFFORD ING OPPORTUNITY OF BEING HEARD. 5. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSING OFFICER RECEIVED AIR INFORMATION THAT THE ASSESSEE HAD SOLD TWO PLOT S OF LANDS DURING THE YEAR UNDER CONSIDERATION AND HAD NOT DISCLOSED THE PROFI TS THEREON. HE, THEREFORE, ISSUED NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 [ IN SHORT' THE ACT']. IN 3 RESPONSE TO THE SAID NOTICE, THE ASSESSEE STATED TH AT THE RETURN FILED ON 27.5.2014 MAY BE TREATED AS RETURN FILED IN RESPONS E TO THE SAID NOTICE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASS ESSING OFFICER WAS NOT SATISFIED WITH THE COST OF ACQUISITION DECLARED BY THE ASSESSEE. HE WORKED OUT THE SHORT TERM CAPITAL GAINS BY TAKING THE VALU E OF THE DLC RATE AND MADE THE ADDITION OF RS. 13,55,607/-. 6. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) WHO DISPOSED OFF THE APPEAL EX-PARTE BY OBSERVING THAT THE NOTICE DATED 23.11.2017 FIXING THE DATE OF HEARING AS ON 5.12.20 17 WAS SENT TO THE ASSESSEE BUT THE SAME RETURNED BACK BY THE POSTAL A UTHORITIES WITH THE REMARKS THAT 'THE RECEIVER DID NOT FOUND'. HE ALSO OBSERVED THAT THE ASSESSEE OR HIS LOCAL AUTHORIZED REPRESENTATIVE DID NOT BOTH ER TO APPROACH THE OFFICE IN ORDER TO CHECK THE STATUS OF THE APPEAL. THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER. NOW THE AS SESSEE IS IN APPEAL. 7. THE LD. SR. DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8. I HAVE CONSIDERED THE SUBMISSIONS OF THE LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE I T IS NOTICED THAT THE LD. CIT(A) HIMSELF HAS ADMITTED THAT THE NOTICE FOR HEA RING SENT BY HIM RETURNED BACK UNSERVED BY THE POSTAL AUTHORITIES. HE, THEREA FTER, DID NOT MAKE ANY EFFORT TO SERVE THE NOTICE OF HEARING UPON THE ASSE SSEE. IT IS WELL SETTLED THAT NOBODY SHOULD BE CONDEMNED UNHEARD AS PER THE MAXIM AUDI ALTERAM 4 PARTEM . I, THEREFORE, BY KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, 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 AFT ER PROVIDING 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 COURT ON 06.05.2019) SD/- (N.K. SAINI) VICE PRESIDENT DATED :06.05.2019 .. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , ! , $ / DR, ITAT, JODHPUR 6. ' / GUARD FILE / BY ORDER / ASSISTANT REGISTRAR