Smt. Kanku Devi, UDAIPUR V. ITO, UDAIPUR

ITA 305/JODH/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9656 (ITAT-JODHPUR)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-02-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 22-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA J
• Keywords: Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER ITA NO.305/JODH/2016 ASSESSMENT YEAR 2008-09 SMT. KANKU DEVI S/O SHRI DALI CHAND JAIN, 30-B, HIRSN MANGRI, SECTION-14 UDAIPUR PAN: AEZPJ 0590N VS ITO, WARD- 1(1),UDAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI S.K. MEENA, JCIT-DR. / DATE OF HEARING : 27/02/2017 / DATE OF PRONOUNCEMENT: 28/02/2017 ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 31.05.2016 BY CIT(A) -I, UDAIPUR PERTAINING TO THE ASSESSMENT YEAR 2008-09 ON VARIOUS GROUNDS INCL UDING GROUND NOS. 4, 5 AND 6 WHICH READ AS UNDER: 4. THAT LEARNED CIT(APPEALS) HAS WRONGLY MENTIONED DATES OF HEARING ONLY NOTICE WAS ISSUED BUT NOT SERVED PROP ERLY. THAT CIT(A) WAS BUSY IN OTHER HEARING AND CASE WAS NOT PROPERLY HEARD AND ADJOURNED. 5. THAT ASSESSEE HAS SUBMITTED THE RETURN OF INCOM E TAX BUT BEFORE PASSING THE ORDER LEARNED INCOME TAX OFFICER AS WELL AS TH E COMMISSION (APPEALS) HAS NOT SEEN THE ASSESSMENT RECORD AND PASSES THE ORDER WITHOUT ANY BASIS. 6. THAT NO PROPER OPPORTUNITY WAS GIVEN BY THE ITO AS WELL AS BY THE CIT BEFORE PASSING THE ORDER. 2. AT THE TIME OF HEARING, AN ADJOURNMENT APPLICATI ON WAS MOVED ON THE BEHALF OF THE ASSESSEE BY HIS COUNSEL REQUESTING FO R TIME. HOWEVER, CONSIDERING THE MATERIAL AVAILABLE ON RECORD QUA TH E GROUNDS RAISED, IT WAS ITA NO.305-JODH-2016 A.Y. 2008-09 2 CONSIDERED APPROPRIATE TO REJECT THE SAME AND PROCE ED WITH THE PRESENT APPEAL EX PARTE QUA THE ASSESSEE-APPELLANT ON MERITS AFTER HEARING THE LEARNED SENIOR D.R. 3. ASSESSMENT ORDER U/S.144/148 OF THE INCOME TAX W AS PASSED BY THE ASSESSING OFFICER ON THE BASIS OF INFORMATION RECEI VED THAT THE ASSESSEE HAD SOLD A LAND ON 23.11.2007 WITH SALE VALUE OF RS.5 L ACS ALONG WITH TWO OTHER CO-OWNERS. THE REGISTERING AUTHORITY VALUED THE SAI D PROPERTY AT RS.22,28,500/-. ACCORDINGLY RELYING UPON SECTION 50 C AND TAKING ASSESSEES SHARE IN THE PROPERTY AT RS.7,42,830/- AND TAKING A SSESSEES INVESTMENT IN LAND AS RS.1,44,283/-, THE LONG TERM CAPITAL GAIN O F RS.5,71,124/- WAS ASSESSED AS ASSESSEES INCOME IN THE YEAR UNDER CON SIDERATION. 4. THE ASSESSEE CHALLENGED THE SAME BEFORE THE CIT( A). AS PER PARAGRAPH 2.2 OF THE IMPUGNED ORDER VARIOUS OPPORTU NITIES AS STATED TO HAVE BEEN PROVIDED TO THE ASSESSEE WHO REMAINED ABSENT. 5. CONSIDERING THE GROUNDS RAISED AND TAKING NOTE O F THE FACT THAT THE IMPUGNED ORDER IS AN EX-PARTE ORDER WHEREIN THE ORD ER IS SILENT AS TO HOW THE ALLEGED NOTICES FOR THE SPECIFIC DATES WERE ISSUED. I AM OF THE CONSIDERED VIEW THAT IT IS APPROPRIATE TO SET ASIDE THE SAME I N THE INTEREST OF SUBSTANTIAL JUSTICE. THOUGH LEARNED SENIOR D.R. PLACING RELIANC E UPON THE ASSESSMENT ORDER SUSTAINED BY THE CIT(A) INITIALLY REQUESTED T HAT THE ADDITION BE SUSTAINED. HOWEVER ON GOING THROUGH THE SAME WAS UN ABLE TO ADDRESS HOW NOTICE WAS SENT TO THE ASSESSEE. ACCORDINGLY, HE AG REED THAT THE SAME MAY BE RESTORED TO THE CIT(A). ACCORDINGLY IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AS SET OUT HEREINABOVE IN THE ABSENCE O F ANY DISCUSSION HOW ITA NO.305-JODH-2016 A.Y. 2008-09 3 NOTICES WERE SENT THE IMPUGNED ORDER IS SET ASIDE, BACK TO THE FILE CIT(A) WITH A DIRECTION TO PASS A SPEAKING ORDER IN ACCORD ANCE WITH LAW AFTER GIVING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D. IT IS HOPED THAT THE OPPORTUNITY SO PROVIDED IS NOT ABUSED BY THE ASSESS EE AND IS UTILIZED MEANINGFULLY BY MAKING FULL AND PROPER COMPLIANCE B EFORE THE CIT(A). IT IS MADE CLEAR THAT IN THE EVENTUALITY, THE ASSESSEE DO ES NOT PARTICIPATE IN THE PROCEEDINGS, FAIRLY THE LD. CIT(A) WOULD BE AT LIBE RTY TO PASS A SPEAKING ORDER ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE OF HEARING ITSELF. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. SD/- (SMT. DIVA SINGH) JUDICIAL MEMBER DATED: 28/02/2017 PRABHAT KUMAR KESARWANI, SR.P.S. COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT AS SISTANT REGISTRAR