SHRI GURWINDER SINGH, BATHINDA V. PRINCIPAL COMMMISSIONER OF INCOME TAX, BATHINDA

ITA 292/ASR/2019

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7992 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 29-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Opportunity of being heard; Capital Gains
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 292/Asr/2019 Assessment Year: 2010-11 Sh. Gurvinder Singh, 7858, Neeta Street, Qeela Road, Bhatinda [PAN: BOMPS0934Q] V s. Pr. C. I.T., Bhatinda (Appellant) (Respondent) Appellant by : Sh. Ashwani Kalia, CA Respondent by: Smt. Rajinder Kaur, CIT(DR) Date of Hearing: 05.05.2022 Date of Pronouncement: 13.06.2022 ORDER Per Dr. M. L. Meena, AM: This appeal has been filed by the assessee against the impugned order dated 22.03.2019 passed by the Ld. Pr. Commissioner of Income Tax, Bhatinda (hereinafter referred to as “the PCIT”) in respect of the Assessment Year 2010-11, wherein the assessee has challenged the order passed u/s 263 ex-parte qua the assessee vide ground number one of the appeal which reads as under: 2 I.T.A. No. 292/Asr/2019 Assessment Year: 2010-11 “1. That the Ld. Pr. CIT, Bathinda has erred in law and on facts in framing order under section 263 ex partie without giving proper opportunity to the assessee hence the order is absolutely void and perverse in view of the provisions of section 263.” 2. At the outset, the ld. counsel for the assessee submitted that the ld. Pr. CIT has been grossly unjustified in holding that the assessee was liable to pay capital gains tax without any basis; that he has mistaken in holding that the opening capital of rupees 2,03,97,015/-was not examined by the AO, as to its source and accumulation since the opening balance has no peering on the income for the year under assessment and the same was brought forward from the preceding year; that the PCIT had on facts in holding that AO did not examine the facts that the assessee converted the land into stock in trade whereas capital gain is liable only in the year of sale and not otherwise and the mere conversion of land in. Has no peering on the income of the assessee during the year under assessment; that the PCIT has further added in observing that AO did not inquired into the source of investment in the purchase of land as well as development expenses incurred the Roman in spite of the fact that total expenses are duly accounted for in the year to which it pertained; that the PCIT’s order section 263 of the act has been passed without appreciating the facts of the case, since the order of the AO was neither erroneous nor prejudicial to the interest of revenue as the assessment was framed after detailed enquiries conducted by the AO. Therefore, he pleaded that the order of the landed 3 I.T.A. No. 292/Asr/2019 Assessment Year: 2010-11 PCIT passed under section 263 is bad in law and on facts and requested to be quashed or alternatively, restored back to the PCIT to establish with the cogent documentary evidences that how the assessment order passed by the AO was erroneous and judicial to the interest of revenue after granting adequate opportunity of being heard to the assessee. 3. The ld. DR although stands by the impugned order but he has no objection to the request of the assessee. 4. Having heard the rival submissions and considering the facts of the case, it is seen that the assessee has been denied sufficient opportunity of being heard to present its case in compliance to the show cause notice dated 14.03.2019 and fixing hearing on 22.03.2019 without mentioning the fact of service of notice. Thus, the Pr. CIT has allowed one week time between the issue of notice and the date of fixation of hearing without ensuring the service of the notice obviously none appeared and the PCIT passed the order ex-parte qua the assessee. From the above, the PCIT has picked up the from the statement of accounts filed by the assessing during the course of assessment proceedings pertaining to the capital shown in the balance sheet, amount expend on purchase of land and land allotment expenses and jumped on the conclusion that the source of capital and the investment purchase of lands and not been examined by the AO without bringing cogent material evidence on record or the reply of the assessee in compliance to show cause notice rebuttal. In our view, such observation of the PCIT without based on corroborative documentary 4 I.T.A. No. 292/Asr/2019 Assessment Year: 2010-11 evidences and rebuttal of the assessee on record our considered to be in gross violation of the principles of natural justice. Accordingly, the considered that it is a fit case, required to be send back to the ld. Pr. CIT to examine the matter afresh, after considering the submissions of the assessee would be filed in the fresh proceedings and affording adequate opportunity of being heard. The assessee is directed to cooperate in the fresh proceedings before the Pr. CIT. Thus, the matter is remanded back to the file of the PCIT to decide the issue afresh by passing a speaking order by addressing the objections and grievances of the assessee. 5. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 13.06.2022. Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member Date: 13.06.2022 *GP/Sr.PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(Appeals) (4) The CIT concerned (5) The Sr. DR, I.T.A.T True Copy By Order