Parwinder Kaur, Noida V. DCIT Circle-02, Noida

ITA 2375/DEL/2019

AI Insights

The case involves Parwinder Kaur, the Appellant, who appealed against the order of the Commissioner of Income Tax (Appeals)-I, Noida, concerning the assessment year 2015-16. The primary contention was regarding the additions made by the Assessing Officer (AO) to the Assessee's declared income, which included disallowances on the indexed cost of acquisition for long-term capital gains, land filling work, and undisclosed income from house property. The Commissioner dismissed the appeal due to non-appearance and insufficient documentation from the Assessee, despite multiple adjournments. The Income Tax Appellate Tribunal (ITAT) found that the Assessee was not given a proper opportunity to be heard, leading to the remand of the case.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 112776 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 14-12-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 17-03-2019
• Other Referred Cases: Menka Gandhi Vs. Union of India
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Capital Gains
• Section: 143(3); 250; 143(2)

Judgement Text

1 ITA no. 2375/Del/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “F”: NEW DELHI BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL MEMBER ITA No. 2375/Del/2019 Asstt. Yr: _2015-16 Parwinder Kaur, Near Gurudwara, Old Kasna Road, VPO Surajpur, Greater Noida. PAN-AWVPK4941Q Vs DCIT, Circle-2, Noidai. APPELLANT RESPONDENT Assessee represented by None Department represented by Sh. A.K. Arora, Sr. DR Date of hearing 15.12.2022 Date of pronouncement 28.12.2022 O R D E R PER N.K. CHOUDHRY, JM: The Assessee has preferred the instant appeal against the order dated 31.08.2018 impugned herein , passed by the Ld. Commissioner of Income tax (Appeals)-I, Noida (in short “Ld. Commissioner”) u/s 250 of the Income Tax Act, 1961 (in short “the Act”), pertaining to the assessment year 2015-16. 2 ITA no. 2375/Del/2019 2. Inspite of sending notice for the date of hearing on 15.12.2022, to the Assessee, none appeared on behalf of the Assessee, therefore, we deem it appropriate to decide this appeal as ex parte. 3. In the instant case the Assessee by filing its return of income on dated 29.3.2017 declared total income of Rs. 1,68,94,390/- which included the long term capital gains of Rs. 1,65,19,785/- and income from other sources at Rs. 3,74,600/-. The case of the Assessee was selected for scrutiny and consequently notice u/s 143(2) was issued on 18.09.2017, in response to which the Assessee filed its written submissions, details and documents. On consideration of the same and discussion with the Assessee, the AO made the addition of Rs. 47,72,896/- being disallowed as indexed cost of acquisition as deducted in computation of long term capital gains by the Assessee. The AO also made the addition of Rs. 15,13,127/- as disallowance on account of land filling work; and addition of Rs. 3,30,492/- as undisclosed income from house property. 3 ITA no. 2375/Del/2019 4 The Assessee being aggrieved against the said additions, preferred first appeal before the learned Commissioner, who fixed the appeal proceedings for hearing on 24.8.2018 and 5.9.2018 on which dates the Assessee sought adjournment on the grounds that her counsel was busy in time barring work of income tax returns and that she was suffering from fever and was not able to provide the details and documents to her counsel respectively. 4.1 The learned Commissioner dismissed the appeal, by observing various facts specific to the effect that the Assessee has not filed the impugned assessment order despite repeated opportunities allowed and there is no merit in the demand of the Assessee for adjournment of its case. 5. We observe that in para no. 2 of the impugned order the learned Commissioner has recorded as under: “The appellant has filed appeal on line. However, only Form 35 is available on the website of the Department which has been downloaded by the office and placed on record. The impugned penalty order, the copy of the demand notice and the challan for the fee u/s 249(1)(a) for admission of the appeal is not available on the record.” 4 ITA no. 2375/Del/2019 5.1 The learned Commissioner in para no. 2 of its order, construed that the penalty order is under challenge, whereas the appeal was against the assessment order u/s 143(3) of the Act. What-so-ever may be, it is a fact that the case of the Assessee before the learned Commissioner was fixed first, for hearing on 24.8.2018 and on being asked specifically the adjournment after 5.9.2018, the learned Commissioner adjourned the case to 28.8.2018 on which date the Assessee sought adjournment as she was suffering from fever and was not able to provide the details and documents to her counsel. However, the learned Commissioner while rejecting the said adjournment decided the case of the Assessee on 31.8.2018, which goes to show that the Assessee was not granted proper and reasonable opportunity of being heard. The Hon’ble Apex Court in the case of Menka Gandi Vs. Union of India recognized “right of being heard” as fundamental right. Hence, considering the peculiar facts and circumstances of the case, we are inclined to remand the instant case to the file of the learned Commissioner for decision afresh, suffice to say by affording reasonable opportunity of being heard to the Assessee. 7. In result, appeal of the Assessee stands allowed for statistical purposes. Order pronounced in the open court on 28.12.2022. 5 ITA no. 2375/Del/2019 Sd/- Sd/- (ANIL CHATURVEDI) (N.K. CHOUDHRY) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI