Ramvir Singh, Uttar Pradesh V. ITO, Noida

ITA 3254/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3280 (ITAT-DELHI)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIT LAL
• Keywords: Capital asset; Opportunity of being heard; Principle of natural justice; Benefit of exemption
• Section: 54B; 2(14); 234B; 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC , NEW DELHI BEFORE SHRI N.K. SAINI , ACCOUNTANT MEMBER I.T.A. NO. 3254 /DEL /201 7 A .Y. : 20 0 8 - 09 RAMVIR SINGH S/O. LATE SH. LIKHI RAM, VILLAGE - KAMRAILA CHAKARSENPUR, PARGANA & TEHSIL DADRI, G.B. NAGAR UTTAR PRADESH PAN : GUIPS4083M VS. ITO WARD - 3(1), AAYAKAR BHAWAN, SECTOR - 24, NOIDA [APPELLANT] [RESPONDENT] APPELLANT BY: NONE RESPONDENT BY: SH. AMRIT LAL, SR. DR DATE OF HEARING: 09 1 1 2017 DATE OF PRONOUNCEMENT: 28 1 1 2017 O R D E R N.K. SAINI , A.M: THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 24.02.2017 OF THE LD. CIT(A) - 1, NOIDA. FOLLOWING GROUNDS RAISED IN THIS APPEAL READS AS UNDER: - 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, HON'BLE CIT(A) HAS ERRED IN REJECTING ALL THE CONTENTIONS RAISED BY THE APPELLANT ON THE MERITS AND DIRECTING THE LD. ASSESSING OFFICER TO COMPUTE THE TOTAL INCOME OF APPELLANT FOR HIS SHARE IN THE PROPERTY I.E., RS. 22,54,730/ - BEING 50% OF RS. 45,09,460/ - (FULL VALUE OF SALE CONSIDERATION) WHICH RESULTED INTO ENHANCEMENT OF THE ASSESSED INCOME. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, THE ORDER OF THE HON BLE CIT(A) IS WRONG PERVERSE, ILLEGAL AND AGAINST THE PROVISIONS OF LAW WHICH IS LIABLE TO BE QUASHED. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, HON BLE ITA NO. 3254/DEL/2017 2 CIT(A) HAS ERRED IN PASSING THE ORDER WITHOUT CONSIDERING THE MERITS OF THE CASE. THEREFORE, THE ORDER OF THE HON BLE CIT(A) IS AGAINST THE PROVISIONS OF LAW AND PRINCIPLES OF NATURAL JUSTICE IN CORRECT SPIRIT AND INTENT. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, HON BLE CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT THE SAID LAND IS RURAL AGRICULTURAL LAND WHIC H IS OUTSIDE THE PREVIEW OF CAPITAL ASSETS S DEFINED UNDER SECTION 2(14) OF THE INCOME TAX ACT, 1961. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, HON BLE CIT(A) HAS ERRED IN COMPUTING THE SHORT TERM CAPITAL GAIN IN ASSESSMENT ORDER WITHOUT GIVING THE BENEFIT OF EXEMPTION UNDER SECTION 54B OF THE INCOME TAX ACT, 1961 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, HON BLE CIT(A) DIDN T APPRECIATE THE FACT THAT THE PREMISES OF THE APPELLANT WAS ACQUIRED THROUGH WILL OF THE FATHER WHICH WAS EXECUTED ON 10.9.2004. THEREFORE, THE PERIOD OF HOLDING SHOULD BE CALCULATED FROM THE DATE OF ACQUISITION OF THE PREVIOUS OWNER WITH REFERENCE TO THE PROVISIONS OF SECTION 2(42A) OF THE INCOME TAX ACT, 1961. 7. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, HON BLE CIT(A) HAS FAILED IN APPRECIATING THE FACT THAT THE CALCULATION OF INTEREST UNDER SECTION 234A AND 234B IS NOT AS PER RELEVANT PROVISIONS OF THE INCOME TAX ACT, 1961. 8. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND LAW ON THE POINT, HON BLE CIT(A) HAS ERRED IN INTERPRETING THE GROUND RAISED BY THE APPELLANT WHICH SHOWS THAT APPELLATE ORDER HAS BEEN PASSED IN HASTE AND FASTEN MANNER. 9. THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, MODIFY, SUBSTANTIATE, DELETE AND / OR TO RESCIND ALL OR ANY OF THE GROUNDS OF APPEAL ON OR BEFORE THE FINAL HEARING, IF NECESSITY SO ARISES. VIDE GROUND NO. 2 AND 3, THE GRIEVANCE OF THE ASSESSEE RELATES TO THE EX PARTE ORDER PASSED BY THE LEAR NED CIT(A) - 1, NOIDA. 2. FACTS OF THE CASE, IN BRIEF , ARE THAT THE AO INITIATED PROCEEDINGS U/S 147 OF THE INCOME TAX ACT , 1961 . SINCE THERE WAS NO COMPLIANCE FROM THE ASSESSEE , T HE AO FRAMED THE ASSESSMENT EX PARTE U/S 147 / 144 OF THE ACT AT AN INCOME OF RS. 22,54,730/ - . BEING AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT(A) WHO SUSTAINED THE ADDITION ON ACCOUNT OF NON PROSECUTION OF THE APPEAL BY THE ASSESSEE. 3. NOW THE ASSESSEE IS IN APPEAL. ITA NO. 3254/DEL/2017 3 4. DURING THE COURSE OF HEARING NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE. I, THEREFORE, PROCEEDED EX PARTE AND THE APPEAL IS DECIDED AFTER HEARING THE LEARNED DR. 5. I HAVE CONSIDERED THE SUBMISSIONS OF LEARNED DR AND PERUSED THE MATERIAL AVAILABLE ON TH E RECORD . IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE AO FRAMED THE ASSESSMENT EX PARTE AND THE LEARNED CIT(A) ALSO PASSED THE IMPUGNED ORDER EX PARTE WITHOUT DISCUSSING THE CASE ON MERIT. HE SIMPLY STATED THAT COUNSEL OF THE ASSESSEE ON THE DATE S OF HEARING KEPT SEEKING ADJOURNMENT S ON THE GROUND THAT THE COUNSEL APPEARING FOR THE ASSESSEE WAS UNWELL OR PAPER BOOK WAS BEING PREPARED OR THE COPIES WERE RECEIVED ONLY RECENTLY ETC. IN THE INSTANT CASE, LEARNED CIT(A) DISMISSED THE APPEA L OF THE ASSESSEE ON THE GROUND OF NON PROSECUTION , AT THE SAME TIME HE MENTIONED THAT THE COUNSEL OF THE ASSESSEE WAS APPEARING AND SEEKING THE ADJOURNMENT S. THEREFORE IT CANNOT BE SAID THAT THE ASSESSEE DID NOT PROSECUTE THE APPEAL. IN THAT VIEW OF THE MATTER, TH E IMPUGNED ORDER IS SET ASIDE AND THE MATTER IS REMANDED BACK TO THE FILE OF THE LEARNED CIT(A) TO BE ADJUCATED AFRESH IN ACCORDANCE WITH LAW A FTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ( P RONOUNCE D IN THE OP EN COURT ON 28 . 1 1 .2017. ) SD/ - [ N.K. SAINI ] ACCOUNTANT MEMBER DATED : 28 . 1 1 .2017 SH ITA NO. 3254/DEL/2017 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR