Babita Agarwal , Hyderabad V. Income Tax Officer, Ward-5(2), Hyderabad

ITA 236/Hyd/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4911 (ITAT-HYDERABAD)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB-B
• Next Hearing Date: 18-12-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 21-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NILANJAN DEY
• Assessee Lawyers: P MURALI MOHANA RAO
• Keywords: Sale consideration of property below Jantri Value; Application of stay; Tangible material; Capital Gains
• Section: 271(1)(c); 50C; 234B; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.236/HYD/2019 ASSESSMENT YEAR: 2009 - 10 & S.A. NO. 265/HYD/2019 A.Y.: 2009 - 10 SMT. BABITA AGARWAL, HYDERABAD. PAN: ABRPB 6028 R VS. INCOME TAX OFFICER, WARD - 5(2), HYDERABAD. (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI P. MURALI MOHANA RAO REVENUE BY: SRI NILANJAN DEY, DR DATE OF HEARING: 18/1 2 /2019 DATE OF PRONOUNCEMENT: 18 /0 2 /2020 ORDER THIS APPEAL IS FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE LD. CIT(A) - 4, HYDERABAD IN APPEAL NO.4/10083/2017 - 18 /ITO 5(2),HYD/CIT(A) - 4, HYD/2018 - 19, DATED 28/01/2019 PASSED U/S. 144 R.W.S 147 AND U/S. 250(6) OF THE ACT FOR THE A.Y. 2009 - 10. 2. THE ASSESSEE HAS ALSO FILED STAY APPLICATION SEEKING STAY FROM RECOVERY OF OUTSTANDING DEMAND OF RS. 27,94,444/ - FOR THE A.Y. 2009 - 10. 3 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN HER APPEAL: 2 1. THE L D. CIT(A) ERRED BOTH ON FACTS AND IN LAW IN DISMISSING THE APPEAL. 2. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ASSESSMENT WAS COMPLETED BY ITO, WARD - 5(2), HYDERABAD WHEREAS THE JURISDICTION OF THE ASSESSEE LIES WITH ITO, WARD 5(1), HYDERABAD WHICH IS BAD IN LAW. 3. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE ISSUE ON WHICH THE ADDITION IS MADE WAS ALREADY AVAILABLE ON RECORD, WHEN THE ORIGINAL RETURN WAS FILED. 4. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE REOPENING OF T HE ASSESSMENT WAS DONE WITHOUT BRINGING ON ANY NEW TANGIBLE MATERIAL SUGGESTING THERE IS ESCAPEMENT OF INCOME BY VIRTUE OF EITHER NON - FILING OF ROI OR WITHHOLDING OF THE INFORMATION. 5. THE LD. CIT(A) ERRED BOTH IN LAW AND IN FACTS IN NOT CONSIDERING CAPIT AL GAIN TAX OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME FILED BY THE ASSESSEE FOR YEAR UNDER CONSIDERATION. 6. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT NO STATUTORY NOTICES WERE ISSUED TO THE ASSESSEE AND THEREFORE THE ENTIRE PROCEEDINGS UNDER THE ACT ARE INVALID. 7. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT SERVICE OF NOTICE TO THE ASSESSEE BY WAY OF AFFIXATION OF NOTICE AT PREVIOUS ADDRESS RESULT INTO EXPARTE ORDER WHEN THE DEPARTMENT IS WELL AWARE OF THE EXISTENCE OF LAST KNOWN ADDR ESS OF THE ASSESSEE. 8. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE ASSESSING OFFICER HAS SERVED NOTICES TO THE OLD ADDRESS OF THE ASSESSEE THOUGH RETURN FOR THE RELEVANT ASSESSMENT YEAR HAVE BEEN FILED WITH NEW ADDRESS. 9. THE LD. CIT(A) ER RED IN BRINGING TO TAX, THE SHORT TERM CAPITAL GAINS OF RS. 38,13,750/ - WHICH IS NOT CORRECT AND BAD IN LAW. 10. THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THE FACT THAT THE ASSESSEE HAS ALREADY FILED HER RETURN OF INCOME AND ADMITTED THE SHORT TERM CAPITAL GAINS ON THE SALE OF PROPERTY. 11. THE LD. CIT(A) ERRED IN NOT FOLLOWING THE PROCEDURE LAID DOWN UNDER SECTION 50C OF THE ACT. 3 12. THE LD. CIT(A) ERRED IN NOT FOLLOWING THE PROCEDURE LAID DOWN UNDER SECTION 50C OF THE ACT. 13. THE LD. A.O. / CIT(A) ERRED I N LEVY OF INTEREST U/S. 234B AND 234C OF THE ACT BY CALCULATING IT TILL THE DATE OF PASSING OF ORDER U/S. 147 OF THE ACT WITHOUT APPRECIATING THE FACT THAT THE ORIGINAL RETURN IS ALREADY PROCESSED. 14. THE LD A.O. / CIT (A) ERRED IN INITIATING THE PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT. 15. THE APPELLANT MAY ADD OR ALTER OR AMEND OR MODIFY OR SUBSTITUTE OR DELETE AND / OR RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL AT ANY TIME BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 4 . AT THE OUTSET, THE LD. AR SUBMITTED BEFORE US THAT THE LD. CIT (A) HAS PASSED EX - PARTE ORDER WITHOUT PROVIDING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. IT WAS FURTHER SUBMITTED THAT DUE TO UNAVOIDABLE REASONS, NEITHER THE ASSESSEE NOR HER COUNSEL COULD APPEAR BEFORE THE LD. AO, AND THEREFORE, THE LD. AO PASSED EX - PARTE ORDER. IT WAS FURTHER SUBMITTED THAT DUE TO COMPELLING CIRCUMSTANCES, THE ASSESSEE COULD NOT APPEAR BEFORE THE LD. CIT (A) ON THE DATE OF HEARING AND THE LD. CIT (A) HASTILY DISPOSE OFF THE APPEAL EX - PARTE. THE LD. AR FURTHER PLEADED BEFORE US THAT SINCE THE ASSESSEE COULD NOT PURSUE THE APPEAL PROPERLY BEFORE THE LD. REVENUE AUTHORITIES ON THE EARLIER OCCASIONS ONE MORE OPPORTUNITY MAY BE PROVIDED BY REMITTING BACK THE MATTER TO THE FILE OF THE LD AO FOR FRESH HEARING. LD. DR, ON THE OTHER HAND, VEHEMENTLY OPPOSED TO THE SUBMISSIONS OF THE LD. AR AND ARGUED THAT SUFFICIENT OPPORTUNITIES HAD BEEN PROVIDED TO THE ASSESSEE , HOWEVER, ON THE GIVEN DATES OF HEARING, NEITHER THE ASSESSEE NO R HIS 4 REPRESENTATIVE APPEARED BEFORE THE LD. CIT (A) AND THE LD. AO . UNDER THESE CIRCUMSTANCES, THE LD. REVENUE AUTHORITIES HAD NO OTHER OPTION BUT TO PASS EX - PARTE ORDERS ON MERITS BASED ON THE MATERIALS AVAILABLE ON RECORD. HENCE, IT WAS PLEADED THAT T HE ORDERS PASSED BY THE LD. REVENUE AUTHORITIES DO NOT CALL FOR ANY INTERFERENCE AND APPEAL OF THE ASSESSEE MAY BE DISMISSED. 5 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE MATERIALS ON RECORD. ON EXAMINING THE FACTS OF THE CASE, WE FIN D MERIT IN THE SUBMISSIONS OF THE LD. DR. THE LD. CIT (A) HAD POSTED THE CASE ON TWO OCCASIONS I.E., 15/11/2018 AND 25/01/2019 . HOWEVER, NONE APPEARED ON BEHALF OF THE ASSESSEE BEFORE THE CIT(A) ON THE ABOVEMENTIONED DATES OF HEARING. IT IS FURTHER OBSERVED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS ALSO, NONE APPEARED ON BEHALF OF THE ASSESSEE TO REPRESENT HER CASE. THE REFORE, THE LD. REVENUE AUTHORITIES WERE LEFT WITH NO OTHER OPTION EXCEPT TO PASS THE ORDERS EX - PARTE. IN THIS SITUATION, WE DO NOT FIND MUCH STRENGTH IN THE ARGUMENTS ADVANCED BY THE LD. AR. HOWEVER, CONSIDERING THE PRAYER OF THE LD. AR AND THE ISSUES IN VOLVED IN THE APPEAL, IN THE INTEREST OF JUSTICE, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF LD. AO IN ORDER TO CONSIDER THE APPEAL AFRESH THERE BY PROVIDING ONE MORE OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. AT THE SAME BREATH, WE ALSO HEREBY CAUTION THE ASSESSEE TO PROMPTLY CO - OPERATE BEFORE THE LD. REVENUE AUTHORITIES IN THEIR PROCEEDINGS 5 FAILING WHICH THE LD. REVENUE AUTHORITIES SHALL BE AT LIBERTY TO PASS APPROPRIATE ORDERS IN ACCORDANCE WITH LAW AND MERITS BASED ON THE MATERIALS ON THE RECORD. I T IS ORDERED ACCORDINGLY. 6 . SINCE THE APPEAL FILED BY THE ASSESSEE IS DISPOSED OFF, THE STAY APPLICATION FILED BY THE ASSESSEE DOES NOT SURVIVE. 7 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AS INDICATED HEREINABOVE AN D THE STAY APPLICATION FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 18 TH FEBRUARY , 2020. SD/ - SD/ - ( P. MADHAVI DEVI ) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER HYDERABAD, DATED: 18 TH FEBRUARY , 2020. OKK COPY TO: - 1) SMT. BABITA AGARWAL, C/O. P. MURALI & CO., CHARTERED ACCOUNTANTS, 6 - 3 - 655/2/3, SOMAJIGUDA, HYDERABAD. 2) INCOME TAX OFFICER, WARD - 5(2), HYDERABAD. 3) THE CIT(A) - 4, HYDERABAD 4) THE PR. CIT - 4, HYDERABAD 5) THE DR, ITAT, HYDERABAD 6) GUARD FILE