Iliyas, G B Nagar V. ITO, Ward-1(5), G B Nagar

ITA 2887/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5083 (ITAT-DELHI)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Unexplained cash credit; Capital asset; Opportunity of being heard; Cost of acquisition
• Section: 54B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SH. N. S . SAINI, ACCOUNTANT MEMBER ITA NO. 2887 /DEL/2018 : ASSTT. YEAR : 2009 - 10 ILIYAS, S/O YASIN, VILLAGE - KHERLI BHAV, MOZ AMPUR, DANKAUR, GAUTAM BUDH NAGAR, UTTAR PRADESH - 203201 VS INCOME TAX OFFICER, WARD - 1( 5 ), NOIDA , GAUTAM BUDH NAGAR, UTTAR PRADESH - 201310 (APPELLANT) (RESPONDENT) PAN NO. A ECPI8100F ASSESSEE BY : NONE REVENUE BY : SH. S. L. ANURAGI , SR. DR DATE OF HEAR ING: 0 6 . 02 .201 9 DATE OF PRONOUNCEMENT: 07 .02 .201 9 ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - I , NOIDA DATED 31.01.2018 . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: A) LEARNED ASSESSING OFFICER HAS CONSIDERED SUBSTANTIAL AMOUNT OF THE CASH DEPOSITS OF RS. 17,04,000/ - AS UNEXPLAINED CASH CREDITS UNDER SECTION 68 WHERE AS ASSESSEE HAS COMPLETE EXPLANATION OF SOURCE OF SUCH CREDITS MADE IN BANK IN THE YEAR UNDER CONSIDERATION. THE AMOUNT SO DEPOSITED INCLUDES AMOUNT WITHDRAWN ON SAME DAY FOR SOME PURPOSE. BALANCE CASH WAS TAKEN FROM RELATIVES AND FRIEND WHO HAVE NO SOURCE OF INCOME OTHER THEN AGRICULTURAL INCOME. THE MAIN PURPOSE OF DEPOSITS OF CASH IN BANK WAS TO PURCHASE ANOTHER PROPERTY OUT OF SUCH CONSIDERATION. HENCE WE REQUEST THE PANEL MEMBERS TO KINDLY ABATE THE TAX IMPOSED ON SUCH DEPOSITS FROM THE VIRTUE OF SECTION 68 AND DO JUSTICE TO THE ASSESSEE. B) DURING THE YEAR, ASSESSEE HAS SOLD IMMOV ABLE PROPERTY WORTH RS.6, 96,000/ - BEING AGRICULTURAL LAND IN CASH, WHICH WAS LATER DEPOSITED IN BANK. LEARNED ITA NO . 2887 /DEL /201 8 ILIYAS 2 ASSESSING OFFICER HAS CONSIDERED THE COST OF ACQUISITION OF SUCH CAPITAL ASSET FROM 01/04/1981 WHEREAS THE PROPERTY WAS ACTUALLY ACQUIRED IN 2007. MOREOVER, ANOTHER AGRICULTURAL LAND WAS PURCHASED WORTH RS. 10,21,000/ - OUT OF SUCH CONSIDERATION MAKING THE ASSESSEE ELIGIBLE TO CLAIM EXEMPTION UNDER SECTION 54B OF THE INCOME TAX ACT, 1961, WHICH WAS NOT CONSIDERED BY LEARNER ASSESSING OFFICER. HERE WE REQUEST THE PANEL MEMBERS TO KINDLY PROVIDE ANOTHER OPPORTUNITY OF BEING HEARD AND RECONSIDER THE COMPUTATION OF CAPITAL GAIN (WHICH STANDS NIL AFTER TAKING EXEMPTION UNDER SECTION 54B.) 3. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE CASE WAS CALLE D FOR HEARING AND NEITHER ANY ADJOURNMENT APPLICATION WAS FILED. THE BENCH WAS OF THE VIEW THAT THE APPEAL OF THE ASSESSEE CAN BE DISPOSED OFF IN THE ABSENCE OF THE ASSESSEE. THEREFORE, THE APPEAL WAS HEARD EX - PARTE QUA THE ASSESSEE AND DISPOSED OFF CONSID ERING THE SUBMISSION OF THE LD. DEPARTMENTAL REPRESENTATIVE. 4 . THE BRIEF FACTS OF THE CASE ARE THAT THE CIT(A) FIXED THE APPEAL FOR HEARING ON 07.04.2017, 18,04,2017 AND 08.09.2017 WHEN THE ASSESSEE DID NOT COMPLY WITH THE SAME. THEREFORE, THE APPEAL OF THE ASSESSEE WAS DISMISSED ON THE GROUND THAT THE ASSESSEE IS NOT SERIOUS TO PROSECUTE ITS CASE. 5 . IN THE ABOVE FACTS OF THE CASE WHEN ASKED BY THE BENCH AS TO WHETHER ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO PRESENT ITS CASE BEFORE THE CIT(A), T HE LD. DR HAD NO OBJECTION TO THE SAME. 6 . IN THE ABOVE BACKGROUND OF THE CASE, I AM OF THE CONSIDERED OPINION THAT THE DISMISSAL OF APPEAL OF THE ASSESSEE FOR NOT APPEARING ON THE DATE OF HEARING S FIXED BY THE CIT(A) IS NOT CORRECT. I FIND THA T THE CASE WAS ITA NO . 2887 /DEL /201 8 ILIYAS 3 FIXED FOR HEARING ON 07.04.2017, 18.04.2017 AND 08 .09.2017. NOWHERE IN THE ORDER , THE CIT(A) HAS MENTIONED THAT THE NOTICE OF HEARING WAS SERVED ON THE ASSESSEE. WITHOUT BRINGING THESE FACTS ON RECORD, IN MY CONSIDERED VIEW , THE DISMISSAL OF THE APPEAL OF THE ASSESSEE WAS NOT PROPER. I, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE MATTER BACK TO HIS FILE TO DECIDE THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING REASONABLE AND PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. THU S, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7 . BEFORE PARTING WITH THE ORDER, I WOULD LIKE TO STATE THAT THE ASSESSEE SHALL SUO - MOTU APPEAR BEFORE THE CIT(A) WITHIN ONE MONTH FROM THE DATE OF RECEIPT OF ORDER FOR FIXING THE DATE OF HEARING BY HIM. THE ASSESSEE IS DIRECTED TO FULLY COOPERATE WITH THE CIT(A) BY FILING ALL DOCUMENTS AND EVIDENCES AS AND WHEN CALLED UPON TO DO SO BY THE CIT(A). THE CIT(A) IS ALSO DIRECTED TO DISPOSE OF THE APPEAL OF THE ASSESSEE EXPEDITIOUSLY. WITH THES E DIRECTIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . (ORDER PRO N OUNCED IN THE OPEN COURT ON 07 /0 2 /2019). SD/ - (N. S . SAINI) ACCOUNTANT MEMBER DATED: 07 /02/2019 *SUBODH* COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT A SSISTANT REGISTRAR