Ramprasad Singh Panwar, Indore V. ITO1(1) Indore, Indore

ITA 233/Ind/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1942 (ITAT-INDORE)
• Duration Of Justice: 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-08-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 22-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MISHRA
• Assessee Lawyers: GIRISH AGRAWALCA
• Keywords: Opportunity of being heard; Corroborative evidences; Non compliance; Condonation of delay
• Section: 143(3); 54; 144

Judgement Text

RAMPRASAD SINGH PANWAR ITA NO.233/IND/2018 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.233/IND/2018 ASSESSMENT YEAR: 2011-12 REVENUE BY SHRI P.K. MISHRA , SR. DR ASSESSEE BY SHRI GIRISH AGRAWAL,CA DATE OF HEARIN G 28.8.2018 DATE OF PRONOUNCEMENT 30.8.2018 O R D E R PER MANISH BORAD, AM. THIS APPEAL FILED BY THE ASSESSEE PERTAI NING TO THE A.Y. 2011- 12 IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONE R OF INCOME-TAX (APPEALS)-I (IN SHORT LD. CIT(A), INDORE DATED 24.1 0.2016 WHICH IS ARISING OUT OF THE ORDER U/S 144 R.W.S. 143(3) OF THE INCOME TAX ACT DATED 24.03.2014 PASSED BY ITO-1(1), INDORE. RA MPRASAD SINGH PANWAR , LASIDIA MORI,NEAR TALAB, SK-1 COMPOUND, DEWAS NAKA, INODRE VS. INCOME TAX OFFICER 1 ( 1 ), INDORE ( APPELLANT ) (RESPONDENT ) PAN NO.AWIPP7733P RAMPRASAD SINGH PANWAR ITA NO.233/IND/2018 2 2. FROM GOING THROUGH THE RECORDS, WE FIND THAT TH IS APPEAL IS BARRED BY LIMITATION DUE TO DELAY OF 404 DAYS. THE APPLICATION ALONG WITH AFFIDAVIT WERE PLACED ON RECORD BY LD. COUNSEL FOR THE ASSESSEE FOR CONDONATION OF DELAY MENTIONING THE REASON THAT THE ASSESSEE MET WITH AN ACCIDENT AND WAS HOSPITALIZED FOR A LON G TIME. 3. WE HAVE PERUSED THE APPLICATION AS WELL AS AFFID AVIT AND FIND FORCE IN THE CONTENTION OF THE ASSESSEE WHICH IS SU PPORTED BY THE FINDINGS OF LD. CIT (A) THAT THE ASSESSEE MET WITH AN ACCIDENT WHICH PREVENTED HIM FROM ATTENDING THE APPELLATE PROCEEDI NGS ALSO. WE THEREFORE IN THE INTEREST OF JUSTICE AS WELL AS ON HUMANITARIAN GROUND CONDONE THE DELAY OF 404 DAYS AND ADMIT THE APPEAL FOR ADJUDICATION. 4. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF AP PEAL; 1. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(A)-1, INDORE ERRED IN PASSING THE ORDER EXPARTE WHICH IS CONTRARY TO MATERIAL ON RECORDS AND PROVISIONS OF THE ACT, UNJUST AND BAD I N LAW. 2. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(A)-1, INDORE ERRED IN SUSTAINING THE ADDITION OF RS.3,42,00,000/ - MADE BY LD.AO AS LONG TERM CAPITAL GAIN WHO HELD THAT ENTIRE SALE PR ICE WILL BE TREATED AS CAPITAL GAIN BY PRESUMING THAT THE ASSESSEE HAS NOT INCURRED ANY RAMPRASAD SINGH PANWAR ITA NO.233/IND/2018 3 EXPENSES TO ACQUIRE THE LAND SOLD WHICH IN FACT WAS A JONTLY OWNED AGRICULTURE LAND. 3. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, LD. CIT(A)-1, INDORE ERRED IN NOT CONSIDERING THE FACTS AND MATERIAL ON RECORD IN PROPER PERSPECTIVE AND SUSTAINING THE EXPARTE ACTION OF THE LD.A.O. 5. AT THE OUTSET THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DUE TO NON ATTENDANCE BEFORE THE ASSESSING AUTHORIT Y THE ASSESSMENT WAS FRAMED EXPARTE U/S 143(3)/144 OF THE ACT AND AN ADDITION OF RS.3,42,00,000/- WAS MADE AS THE ASSESS EE WAS NOT ABLE TO FILE NECESSARY DETAILS. FURTHER EVEN BEFOR E LD. CIT(A) ON ACCOUNT OF THE ACCIDENT, ASSESSEE WAS PREVENTED FRO M ATTENDING THE REGULAR APPELLATE PROCEEDINGS THROUGH ITS REPRESENT ATIVE. HE REQUESTED FOR SETTING ASIDE ALL THE ISSUES TO THE F ILE OF THE LD. ASSESSING OFFICER. 6. PER CONTRA THE LD. DEPARTMENTAL REPRESENTATIVE S UBMITTED THAT NUMBER OF OPPORTUNITIES WERE GIVEN TO THE ASSESSEE BY THE ASSESSING OFFICER AS WELL AS AROUND 15 OPPORTUNITIE S WERE GIVEN BY LD. CIT(A) AND IT SEEMS THAT THE ASSESSEE INTENTION ALLY AVOIDED TO APPEAR BEFORE THE APPELLATE AUTHORITIES. THE LD. D EPARTMENTAL RAMPRASAD SINGH PANWAR ITA NO.233/IND/2018 4 COUNSEL URGED THAT IN CASE THE ISSUES ARE SET ASIDE THEN THEY MAY BE RESTORED TO LD.CIT(A). 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US. THE ASSESSEE IS AGGRIEVED WITH THE ADDI TION OF RS.3,42,00,000/- MADE BY THE LD. ASSESSING OFFICER ON ACCOUNT OF LONG TERM CAPITAL GAIN NOT DISCLOSED IN THE INCOME TAX RETURN AND THE ADDITION HAS BEEN CONFIRMED BY LD.CIT(A). WE O BSERVE THAT THE ASSESSEE REMAINED NON COMPLIANT TO NOTICES FOR HEAR ING AND COULD NOT ATTENDED BEFORE THE ASSESSING OFFICER DUE TO CH ANGING OF THE COUNSELS AND ASSESSING OFFICER HAD NO OPTION EXCEPT TO FRAME THE ASSESSMENT U/S 144 OF THE ACT. 8. THEREAFTER THE ASSESSEE FILED APPEAL BEFORE LD.C IT(A) AND GAVE SUBMISSIONS CHALLENGING THE ADDITIONS MADE BY THE A SSESSING OFFICER. THE LD. CIT(A) ADOPTING A GENEROUS ATTITUD E AND CONDONED THE DELAY OF 174 DAYS IN FILING THE APPEAL BEFORE HIM. BUT DURING THE COURSE OF APPELLATE PROCEEDINGS IN ORDER TO ADJ UDICATE THE ISSUE AROUND 15 OPPORTUNITIES WERE GIVEN BUT AT EACH TIME ADJOURNMENT WAS SOUGHT AND THE DETAILS IN SUPPORT OF CLAIM U/S 54 B OF THE ACT WERE NEVER PROVIDED BEFORE THE LD.CIT(A). IN ABSE NCE OF NECESSARY RAMPRASAD SINGH PANWAR ITA NO.233/IND/2018 5 DOCUMENTS AND SUPPORTING EVIDENCES, LD.CIT(A) HAS NO OPTION BUT TO DISMISS THE APPEAL. 9. WE FIND THAT BOTH THE PARTIES HAVE AGREED THAT T HE ISSUE NEEDS RE ADJUDICATION IN LIGHT OF DOCUMENTS AND EVIDENCE. W E HOWEVER ARE OF THE CONSIDERED VIEW THAT THE ISSUE SHOULD BE SET AS IDE TO THE FILE OF LD.CIT(A) AND NOT TO THE ASSESSING OFFICER FOR ADJU DICATION OF THE ISSUES RAISED IN THIS APPEAL. WE FURTHER DIRECT TH E ASSESSEE TO REMAIN COMPLIANT TO THE NOTICES ISSUED FOR HEARING OF THE APPEAL AND SHOULD NOT TAKE ANY ADJOURNMENT UNLESS OTHERWIS E REQUIRED FOR UNAVOIDABLE REASONS AND ASSIST THE APPELLATE AUTHOR ITY FOR ADJUDICATION OF THE ISSUES. THE ASSESSEE SHOULD AL SO FILE THE DOCUMENTS IN SUPPORT OF ITS CLAIM ON VERY FIRST DAY OF HEARING BEFORE THE LD.CIT(A). NEEDLESS TO MENTION THAT REASONABLE OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE. WITH THESE DIRECTIONS WE RESTORE THE ISSUES TO THE FILE TO LD.CIT(A) AND ALLOW THE ASSESSEES APPEAL FOR STATISTICAL PURPOSES. RAMPRASAD SINGH PANWAR ITA NO.233/IND/2018 6 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30.8. 2018. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 30 AUGUST, 2018 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE