Sewak Ram, Chandigarh V. Addl. CIT, Chandigarh

ITA 283/CHANDI/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80914 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 6 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 14-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JYOTI KUMARI
• Keywords: Business income
• Section: 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 283/CHD/2013 ASSESSMENT YEAR : 2009-10 SEWAK RAM, VS. THE ADDL.C.I.T., SCO 834, 1 ST FLOOR, RANGE III, NAC MANIMAJRA, CHANDIGARH. CHANDIGARH. PAN: ABGPR4704H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.N.SINGLA RESPONDENT BY : SMT.JYOTI KUMARI, DR DATE OF HEARING : 30.09.2014 DATE OF PRONOUNCEMENT : 30.09.2014 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF THE LEARNED CIT (APPEALS), CHANDIGARH DATE D 6.12.2012 FOR ASSESSMENT YEAR 2009-10, CHALLENGING THE ADDITION OF RS.3,21,07,480/- BY TREATING THE LONG T ERM CAPITAL GAIN AS BUSINESS INCOME AND NOT ALLOWING DE DUCTION UNDER SECTION 54F OF THE INCOME TAX ACT. FURTHER ADDITION OF RS.1,20,386/- WAS CHALLENGED TREATING THE LONG TERM CAPITAL GAIN AS BUSINESS INCOME. 2. THE LEARNED CIT (APPEALS) NOTED THAT THE DATE OF HEARING WAS FIXED ON 17.9.2012 BUT NOBODY APPEARED BEFORE H IM. FURTHER THE CASE WAS FIXED ON 22.10.2012, ON WHICH DATE 2 ADJOURNMENT WAS TAKEN FOR 30.12.2012 AND THEN ON 9. 11.2012 AND IT WAS ADJOURNED TO 29.11.2012 AT THE REQUEST O F THE LEARNED COUNSEL FOR THE ASSESSEE. THEREAFTER NOBOD Y APPEARED AND NO ADJOURNMENT APPLICATION WAS RECEIVED AND NO SUBMISSIONS HAVE BEEN MADE. THE LEARNED CIT (APPE ALS) ACCORDINGLY CONSIDERING THE MATERIAL ON RECORD DISM ISSED THE APPEAL OF THE ASSESSEE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT NO PROPER OPPORTUNITY HAD BEEN GIVEN BY THE LEARNED CI T (APPEALS). IN SUPPORT OF THIS CONTENTION HE HAS FI LED AFFIDAVIT OF THE ASSESSEE IN WHICH IT WAS STATED ON OATH THAT THE ASSESSEE DID NOT RECEIVE ANY NOTICE FOR HEARING ON 17.9.2012 FROM THE LEARNED CIT (APPEALS) AND THEN ON 22.10.20 12 ASSESSEES COUNSEL SOUGHT ADJOURNMENT FOR ONE MONTH AS ENGLISH TRANSLATION TO LARGE DOCUMENTS WAS TO BE SU BMITTED BEFORE THE LEARNED CIT (APPEALS) BUT SHORT ADJOURNM ENT OF ONE WEEK WAS ALLOWED FOR 30.10.2012 AND THEREAFTER ALSO SHORT ADJOURNMENT WAS GIVEN FOR 9.11.2012. ON 29.11.2012 ONE SHORT ADJOURNMENT WAS REQUESTED AS THE TRANSLATED C OPY OF DOCUMENT IN ENGLISH WAS TO BE SUBMITTED BUT THE SAM E WAS DENIED TO HIS COUNSEL. THE COPY OF THE AFFIDAVIT IS GIVEN TO THE LEARNED D.R. FOR THE REVENUE. THE LEARNED COU NSEL FOR THE ASSESSEE, THEREFORE, CONTENDED THAT SINCE THE T RANSLATED COPIES OF THE DOCUMENTS COULD NOT BE FILED ON RECOR D AS REQUIRED BY THE LEARNED CIT (APPEALS), THEREFORE, T HE DOCUMENTS ON RECORD HAD NOT BEEN PROPERLY APPRECIAT ED AND AS SUCH THE ASSESSEE MAY BE GIVEN ONE MORE OPPORTUN ITY TO ARGUE BEFORE THE LEARNED CIT (APPEALS) AND HE HAS U NDERTAKEN 3 BEFORE US THAT HE WILL SUBMIT TRANSLATED COPIES OF THE DOCUMENTS BEFORE THE CIT (APPEALS) WITHIN 15 DAYS F ROM TODAY. ON THE OTHER HAND, THE LEARNED D.R. FOR TH E REVENUE RELIED UPON THE ORDER OF THE LEARNED CIT (APPEALS). 4. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE AR E OF THE VIEW THAT THE MATTER REQUIRES RE-CONSIDERATION AT T HE LEVEL OF THE LEARNED CIT (APPEALS). THE AFFIDAVIT OF THE A SSESSEE IS NOT REBUTTED THROUGH ANY MATERIAL. THE AFFIDAVIT OF THE ASSESSEE AND CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE WOULD REVEAL THAT THE LEARNED CIT (APPEALS ) ASKED THE ASSESSEE TO FILE TRANSLATED COPIES IN ENGLISH O F THE DOCUMENTS SUBMITTED BEFORE HIM, WHICH THE ASSESSEE COULD NOT SUBMIT ON TIME AND SOUGHT ADJOURNMENT. IT, TH EREFORE, APPEARS THAT ENGLISH VERSION OF THE COPIES OF THE D OCUMENTS HAVE NOT BEEN PRODUCED BEFORE THE LEARNED CIT (APPE ALS). THEREFORE, THERE MAY NON-APPRECIATION OF THE EVIDEN CE FILED BEFORE THE LEARNED CIT (APPEALS). THIS FACT WOULD , THEREFORE, MAKES OUT THE CASE IN FAVOUR OF THE ASSESSEE THAT O NE MORE OPPORTUNITY OF HEARING BE GIVEN TO THE ASSESSEE TO FILE ENGLISH TRANSLATED COPIES OF THE DOCUMENTS BEFORE THE LEARN ED CIT (APPEALS) AND TO ARGUE THE APPEAL BEFORE THE LEARNE D CIT (APPEALS). IN THIS VIEW OF THE MATTER, WE SET AS IDE THE ORDER OF THE LEARNED CIT (APPEALS) AND RESTORE THE ISSUES INVOLVED IN THE APPEAL OF THE ASSESSEE TO HIS FILE WITH DIRECTI ON TO RE- DECIDE THE APPEAL OF THE ASSESSEE IN ACCORDANCE WIT H LAW BY GIVING REASONABLE SUFFICIENT OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FILE ENGLIS H TRANSLATION OF THE DOCUMENTS FILED BEFORE THE LEARNED CIT (APPE ALS) AT THE 4 EARLIEST AS PER THE UNDERTAKING GIVEN BEFORE US AND THE ASSESSEE SHALL NOT SEEK UN-NECESSARY ADJOURNMENT IN THE MATTER. 5. WITH THESE OBSERVATIONS, THE APPEAL OF THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF SEPTEMBER, 2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 30 TH SEPTEMBER, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH